People v. Roberson

D. C. Riley, J.

(dissenting). I write separately in order to express my disagreement with the majority’s conclusion that a trial judge is not required to *205balance the factors enunciated in People v Jackson, 391 Mich 323, 333; 217 NW2d 22 (1974), and People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978), on the record. Judicial consideration in an area of law which results in the promulgation of carefully demarcated guidelines should not be rendered nugatory by cursory reference to the discretionary nature of an activity required of trial judges, but should rather involve a legitimate attempt to gauge the prejudicial and probative impact of admitting felony convictions for impeachment purposes. As People v Crawford, supra, at 38 noted, the rule "envisions a true exercise of discretion by balancing the competing factors involved”. While it is correct that no Michigan case has yet expressly required an on-the-record discussion of the Jackson-Crawford components, it seems rather anamolous, indeed, that trial judges should be admonished to consider and balance those elements as. part of their decision-making process, and yet provide no method for ensuring by way of appellate review that those requirements are complied with. The rule as it stands effectively shields trial court impeachment determinations from review by a higher court. The present case serves as a sufficient example. Before empaneling the jury, defendant moved to suppress the admission of his prior felony convictions. The record offers the following dialogue:

"THE COURT: Are there any other matters?
"MR. ZACK [Defense Attorney]: Yes, I would move to suppress the prior record of the defendant in this matter.
"THE COURT: Now what is his prior record?
"MR. ZACK: His prior record — I don’t have a copy of it. The prosecutor has.
“MR. BAHEN [Assistant Prosecuting Attorney]: The *206prior record indicates he was convicted of assault with intent to rape on January 11 of 1966. He has a sodomy charge — excuse me — a charge of sodomy. He was convicted of gross indecency in December 23rd, 1970. He has a receiving and concealing stolen property December 3rd, 1970. That’s the extent of his record.
"We have one case pending which is not part of this record.
"THE COURT: The Court makes the following rulings:
"All misdemeanor convictions are hereby suppressed.
"As far as felony convictions, that’s a discretionary matter with the Court. I’ll permit the prosecuting attorney to show any felony convictions if the defendant takes the witness stand.”

The trial judge’s perfunctory disposition followed immediately after he was informed by the prosecution of defendant’s previous record. Although the court recognized its power of discretion, the record is barren of any evidence that the Jackson-Crawford factors were considered (or any showing that the court was cognizant of them). Nor, as the passage of time between the trial judge’s awareness of defendant’s felony record and his decision to admit the convictions indicates, was there sufficient time to support even an inference that any balance of considerations occurred. Here, defendant had three previous felony convictions, all of which were at least six years old. Two were for sexual offenses, one occurring 11 years before the present trial. People v Jackson, supra, cautioned against the danger inherent in the admission of similar crimes for impeachment purposes, and indicated that the trial courts were to be guided in the exercise of their discretion by the criteria discussed in Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), and Luck v United *207States, 121 US App DC 151; 348 F2d 763 (1965). Gordon included the following excerpt:

"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.” 127 US App DC at 347. (Emphasis supplied.)

It should further be noted that defendant elected not to take the stand as a result of the court’s decision. But again, no weight was given these considerations by the lower court.

In sum, if the Jackson-Crawford criteria are to exist as something more than an ineffectual assemblage of hollow directives, care should be taken, by means of an on-the-record deliberation, that their requirements are given full consideration. Inasmuch as defendant may have been precluded from testifying due to the court’s faulty impeachment inquiry, as he made no inculpatory statements, nor was any physical evidence tying him to the offense produced, I cannot conclude that the error was harmless beyond a reasonable doubt.1 People v *208Robinson, 386 Mich 551; 563; 194 NW2d 709 (1972), People v Sherman Hall, 77 Mich App 456, 461; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978), People v Heard, 58 Mich App 312, 316; 227 NW2d 331 (1975), lv den 400 Mich 812 (1977). Defendant’s conviction should be reversed.

To this may be added the rule that the people, not the defendant, must justify to the court the use of prior convictions for impeachment. People v Crawford, 83 Mich App 35, 38; 268 NW2d 275 (1978), People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975). The transcript discloses nothing by way of prosecutorial argument in favor of their admission.