People v. Parcha

Holbrook, Jr., J.,

(dissenting). I respectfully dissent.

Although erroneously ruling that evidence of defendant’s two prior misdemeanor theft convictions was admissible, the trial court properly characterized the case as a “one-on-one” credibility contest in which “[w]ho and what the jury believes is going to be pivotal.” The court’s erroneous and prejudicial evidentiary rulings 1 had a direct effect on the perception of defendant’s credibility, yet the majority here concludes that the error in admitting evidence of these prior convictions was harmless because, in their opinion, the jury’s verdict was not likely to have been influenced by the error, and defendant’s guilt was “overwhelmingly established.” The majority’s conclusion negates the bright-line rule regarding what evidence of prior convictions is admissible under MRE 609(a)(1), established by our Supreme Court in People v Allen, 429 Mch 558; 420 NW2d 499 (1988), and is not supported by the record. First, as noted by the trial court, the credibility of the complainant and defendant was the “pivotal” issue to be decided by the jury. Second, review of the record belies a finding that evidence of defendant’s guilt was overwhelming. Following two full days of testimony, the jury was given the option to find defendant guilty on count I of *250 assault with intent to commit murder, the lesser felony offense of assault with intent to do great bodily harm less than murder, the misdemeanor offense of careless, reckless, negligent use of a firearm resulting in injury, or the misdemeanor offense of discharge of a firearm intentionally aimed without malice, and on count n of felony-firearm. The jury deliberated for approximately four hours over two days, sending three notes to the court, requesting pictures, medical records, the gun, the police report, defendant’s police statement, and reinstructions concerning the lesser assault offense, the misdemeanor offense of careless, reckless, negligent use of a firearm, and reasonable doubt. Ultimately, the jury convicted defendant of the lesser felony assault offense and felony-firearm. Given this record, affirmance based on overwhelming evidence is insupportable. Third, defendant was the only defense witness, and, because his defense was that the shooting was accidental, and no witnesses (other than the complainant) were present at the scene, defendant’s testimony on his own behalf was critical. Fourth, the prosecutor compounded the error by improperly phrasing the question to defendant during cross-examination as whether he had been previously convicted of crimes involving “a lack of truthfulness.” Finally, the misdemeanor convictions were stale, being five and six years old. 2

*251 Thus, in my opinion, the majority’s conclusion that the trial court’s evidentiary errors were harmless constitutes a substitution of the majority’s own judgment of defendant’s guilt for that of the jury. “Jurors are the sole judges of the facts and neither the trial court nor this court can interfere with their exercise of that right.” People v Miller, 301 Mich 93, 100 ; 3 NW2d 23 (1942); People v Barker, 411 Mich 291, 300 ; 307 NW2d 61 (1981).

I would reverse and remand for a new trial.

Standing alone, the trial court’s erroneous exclusion of defendant’s testimony reflecting his present sense impression, which inhibited his ability to present a defense, probably did not constitute error requiring reversal. However, in my opinion, the trial court’s erroneous decision to allow the prosecutor to impeach defendant with evidence of the two prior misdemeanor convictions severely impaired defendant’s right to receive a fair trial.

See, e.g., People v Clemons, 177 Mich App 523, 527 ; 442 NW2d 717 (1989) (admission of the defendant’s conviction of entry without owner’s permission was not harmless error where prosecutor’s case was not overwhelming and “a reasonable juror could have voted to acquit defendant if he had not been impeached”); United States v Logan, 302 US App DC 390, 403; 998 F2d 1025 (1993) (Mikva, C.J., dissenting in part) (the majority, which found no prejudice to the defendant from admission of evidence of prior misdemeanor conviction to impeach defense witness, has “virtually nullified” Rule 609 ). Cf. People v Clark, 172 Mich App 407, 419-420 ; 432 *251 NW2d 726 (1988) (preamendment MRE 609; no error in admission of evidence of the defendant’s misdemeanor conviction for receiving and concealing stolen property where it was completely dissimilar to current offense and other defense testimony supported the defendant’s self-defense theory); United States v Logan, supra (error harmless because evidence of prior convictions was used to impeach a defense witness, not the defendant, the prosecutor did not emphasize convictions, and the government had “strong case” against the defendant); United States v Scisney, 885 F2d 325, 326-327 (CA 6, 1989) (admission of evidence of the defendant’s prior shoplifting conviction was harmless error where the jury was aware of the defendant’s “prior brushes with the law” and the government’s case was a “strong one”); McHenry v Chadwick, 896 F2d 184, 189 (CA 6, 1990) (admission of evidence of the plaintiffs misdemeanor conviction for concealing stolen property was harmless error because the jury was already aware that the plaintiff was convicted of burglary and serving time for that offense).