PEOPLE
v.
RODGERS
Docket No. 58652.
Michigan Court of Appeals.
Decided September 23, 1982.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Nancy R. Alberts, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Nora J. Pasman), for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and WAHLS and M.E. CLEMENTS,[*] JJ.
PER CURIAM.
The defendant was charged with breaking and entering a business place with intent to commit larceny, MCL 750.110; MSA 28.305, on July 23, 1980. Following a bench trial held December 2 and 3, 1980, the trial court found defendant guilty as charged. On December 11, 1980, the trial court sentenced defendant to two to ten years imprisonment.
On the date assigned for commencement of defendant's jury trial, defense counsel moved to suppress evidence of defendant's prior convictions. The defendant had been convicted of several breaking and enterings between 1974 and 1978. Defendant said he would not take the witness stand if the trial court denied the motion. The trial judge granted defendant's motion to suppress.
*769 The prosecutor then argued that the trial court might alternatively allow the prosecutor to impeach defendant with evidence of his prior convictions without naming the nature of the felony offenses. The prosecutor cited People v Huff, 101 Mich. App. 232; 300 NW2d 525 (1980), to support this argument. The trial judge amended his order stating that if the defendant took the witness stand the prosecutor could ask the defendant whether or not he had ever been convicted of a felony within the past ten years without specifying the felony. Defense counsel did not object to this ruling. Soon after this ruling, defendant waived his right to a jury trial without stating a reason for the waiver.
Defendant argues in this appeal that the trial court's ruling permitting impeachment with evidence of unspecified prior convictions was erroneous and rendered his subsequent waiver of a jury trial invalid. We hold that admitting evidence of prior convictions for impeachment purposes without specifying the nature of the offenses does not cure the prejudice.
"Proof of an unspecified `felony' conviction invites a jury to speculate on the nature of the crime and perhaps to assume that it was a breaking and entering, a kidnapping or an assault with a dangerous weapon, each of which was charged against the defendant in this case. At the very least, proof of the unspecified `felony' conviction prevents rational evaluation of the impact of the defendant's past conduct on his credibility and therefore cannot serve the sole purpose for which it was to be presented; at the most, it informs the jury that a `felon' is on trial for yet another felony." People v Jones, 92 Mich. App. 100, 112; 284 NW2d 501 (1979).
Accord, People v Graves, 98 Mich. App. 112, 116-117; 296 NW2d 4 (1979), People v Dixon, 99 Mich *770 App 847, 849; 298 NW2d 647 (1980), lv den 410 Mich. 881 (1981), People v Kramer, 108 Mich. App. 240; 310 NW2d 347 (1981). Contra, People v Huff, supra, pp 248-252.
The Supreme Court adopted this Court's rejection of admission of evidence of unspecified felonies for impeachment purposes by its order in People v Van Dorsten, 409 Mich. 942; 298 NW2d 421 (1980). The nature, rather than the fact, of a prior felony conviction is useful to the factfinder in evaluating credibility. Id. Thus, the trial court erred by ruling that, should defendant testify, the prosecutor could impeach defendant with evidence of his prior felony convictions without specifying the nature of those felonies.
The prosecution argues that the trial court's ruling constituted harmless error since defendant ultimately waived his right to a jury trial. As the prosecution points out, the trial judge was fully aware of the precise nature of defendant's prior felony convictions and can be presumed to have ignored them or considered them only in a proper manner. However, this contention fails to consider the possibility that the trial court's ruling coerced defendant's jury waiver. The courts will not permit a procedure which needlessly chills the exercise of a constitutional right. E.g., United States v Jackson, 390 U.S. 570; 88 S. Ct. 1209; 20 L. Ed. 2d 138 (1968). The crucial issue in this case is whether the trial court's decision chilled the exercise of defendant's right to a trial by jury.
While it is impossible to tell conclusively whether or not defendant would have otherwise waived his right to a jury,[1] our examination of the *771 trial transcript convinces us that the waiver of that right was coerced by the court's decision. Although defense counsel did not state so explicitly, every indication is that the waiver was the direct product of the adverse ruling. Defendant asked for a jury trial. Prior to trial, counsel made a motion to suppress evidence of defendant's prior convictions, which was granted. Defendant did not waive his right to a jury trial at that point in the proceedings. Thereafter, the trial court agreed with the prosecutor's contention that evidence of the prior convictions could be placed before the jury for impeachment purposes as unnamed felonies. Defense counsel then conferred with defendant off the record, after which the jury waiver was tendered to the court. From this course of events we can only conclude that defendant waived the right to a jury trial because of the trial court's erroneous ruling, preferring a bench trial to the risk of prejudice from having evidence of the unnamed felonies placed before a panel of jurors.
We believe the interests of justice demand that defendant be given a new trial. We cannot accept the prosecution's argument that the case against defendant was so strong so as to have made the error harmless. The right to trial by jury is among the most fundamental rights provided by our judicial system. The coerced waiver of that right is one we view as so offensive to the maintenance of a sound judicial system that it may not be regarded as harmless. See People v Robinson, 386 Mich. 551, 563; 194 NW2d 709 (1972).
Reversed and remanded for new trial.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] In this regard we are in the same position as the late Will Rogers, who only knew "just what he read in the papers". All we know is just what we read in the trial transcript and ancillary lower court records.