People v. Worden

M. J. Kelly, J.

(concurring). I concur only in the result.

I would hold that the lower court erred in allowing admission of evidence of defendant’s five prior convictions for purposes of impeachment. Apart from the fact that two of these prior convictions were 18 years old and one of them had been reversed on appeal and the case was subsequently nol-prossed, I think the prejudicial impact of the evidence of these five prior convictions far outweighed any probative value it might have had on the issue of defendant’s credibility.

This question of admissibility, in my opinion, is controlled by the recent Supreme Court decision in People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), where it was held that, when the prior conviction is for the same or substantially the same conduct for which defendant is on trial, good reasons exist for excluding evidence of the prior conviction. In Baldwin, the trial court permitted the defendant, in a prosecution for assault with intent to go great bodily harm less than murder, to be impeached with evidence of his prior convictions of felonious assault and attempted robbery. In People v Woolfolk, a case consolidated on appeal with Baldwin, the trial court admitted evidence of defendant’s prior conviction of unarmed robbery for purposes of impeachment, in a prosecution on the charge of armed robbery. In both cases, the trial court reasoned that the similarity of the prior conduct to the charged offense was a factor favoring admissibility.

In reversing, the Court ruled that similarity between prior convictions and the charged offense is a factor weighing against admissibility and *687quoted, with approval, the following language from United States v Gordon, 127 US App DC 343, 347; 383 F2d 936 (1967):

"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time.’ As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” People v Baldwin, supra, at 553.

The majority, although conceding the prejudicial nature of the evidence of these five prior convictions, finds no abuse of discretion in its admission because "these convictions, while for similar type offenses, were not for the identical crime of forgery [with which] defendant was charged”. I think that conclusion misapprehends the analysis in Baldwin. Baldwin applies to prior convictions for "the same or substantially the same conduct”. Identity is not required.

In this case, the admission of evidence of these prior convictions and its use as impeaching evidence was, in all likelihood, the primary consideration in defendant’s decision not to take the stand. And rightly so, for, rather than an "inevitable pressure”, and recitation of this litany of prior, highly-similar offenses could, very possibly, have had a compelling effect on the jury.

In the context of this case, however, I would not *688find that the decision to admit evidence of these prior convictions constituted reversible error, for the people presented overwhelming evidence that defendant had forged the check. In a less clear-cut case where the decision to admit such evidence could have a decisive impact, I would find that the admission of evidence of five prior convictions for highly-similar offenses would constitute reversible error.