People v. Johnson , 157 Mich. App. 248 ( 1987 )

157 Mich. App. 248 (1987) 403 N.W.2d 533

PEOPLE
v.
JOHNSON

Docket No. 84699.

Michigan Court of Appeals.

Decided January 20, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Denise Green, Assistant Prosecuting Attorney, for the people.

Colista, Urso, Adams & Dettmer (by Robert W. Palmer), for defendant on appeal.

Before: D.F. WALSH, P.J., and M.J. KELLY and C.W. SIMON,^[*] JJ.

PER CURIAM.

Defendant, James Johnson, was convicted by a jury of receiving and concealing stolen property valued at more than $100. MCL 750.535; MSA 28.803. The stolen property was a 1978 Chevrolet Corvette automobile. Defendant was sentenced to two years probation, the first six months to be served in the county jail.

The issue before us on appeal is whether the trial court abused its discretion in allowing the prosecution to impeach defendant with evidence of a prior conviction for manslaughter. We find no abuse of discretion and affirm.

Although no motion in limine had been made to suppress evidence of prior convictions, the prosecutor obtained a ruling prior to using defendant's prior conviction to impeach. Following defendant's direct testimony, the jury was excused and the prosecutor requested the court's permission to ask defendant whether or not he had ever been convicted of manslaughter. Defendant's history indicated a charge of assault with intent to murder and subsequent conviction for manslaughter in 1979. Defense counsel objected on the grounds that the crime was in no way similar to the crime charged and that evidence of the prior conviction would be more prejudicial than probative.

In deciding to allow the evidence, the court stated:

The Court: All right. First of all, I would consider what you said, counsel, indicating manslaughter could be many things which would not in this Court's mind weigh on the credibility of a witness.

In this case it appears the original charge was assault with intent to commit murder and the final conviction and sentencing was on manslaughter.

The crime is dissimilar. I don't think there is any chance that the jury will confuse the crimes or relate it to anything regarding a stolen automobile, but it does go on the issue of credibility and I do believe that the probative value of admitting this on the issue of credibility outweighs its prejudicial effect particularly since it is not similar at all.

There is nothing to indicate it involved any charge with an automobile and I think it is probative of the defendant's credibility. So that may be used.

There is no dispute that the trial judge recognized her discretion to admit or exclude the prior conviction and that she complied with MRE 609(a)(2) by stating on the record the factors considered in her determination of admissibility. See People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974); People v Crawford, 83 Mich. App. 35; 268 NW2d 275 (1978).

Evidence of prior convictions is especially probative where there is a credibility contest between the defendant and the prosecution's witnesses. People v Holmes, 132 Mich. App. 730, 744-745; 349 NW2d 230 (1984), People v Carpenter, 120 Mich. App. 574, 581; 327 NW2d 523 (1982). MRE 609 provides that evidence of a prior conviction is admissible for the purpose of attacking the credibility of a witness during cross-examination if the crime for which the witness was previously convicted was punishable by death or imprisonment in excess of one year and the trial court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect.

The factors which the judge should weigh in balancing probative value and prejudicial effect include: (1) the nature of the prior offense, in particular whether it involved an offense bearing directly on credibility; (2) whether the prior conviction was for substantially the same conduct for which the defendant is on trial, in particular whether the offenses are so closely related that a jury may infer that because the defendant was previously convicted he likely committed this crime; and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment. Crawford, supra, p 39.

In this case the past offense was a felony punishable by more than one year in prison, MCL 750.321; MSA 28.553, and thus admissible. MRE 609(a)(1). It occurred within ten years of the crime charged. MRE 609(b). The prior conviction was for entirely different conduct than the crime charged, hence unlikely to create prejudice in the minds of the jury. The effect on the decisional process if the accused did not testify is not at issue since defendant testified at trial.

The evidence was clearly admissible under MRE 609. The factors tending to create prejudice were minimal, and defendant's credibility was crucial to resolution of the case. We find no abuse of discretion in the trial court's decision.

Affirmed.

NOTES

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