Opinion
Docket No. 55740.
Decided December 21, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Janis L. Blough, Chief Appellate Attorney, and Susan K. Marshall, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Rolf E. Berg), for defendant on appeal.
On September 24, 1980, defendant was convicted by jury of three counts of drawing a check without having a checking balance, contrary to MCL 750.131a; MSA 28.326(1). Five days later, in a bench trial, defendant was found to be a six-time felony offender, pursuant to MCL 769.12- 769.13; MSA 28.1084-28.1085. Sentenced on October 8, 1980, to 7-1/2 to 15 years in prison, he appeals of right raising three issues: (1) failure of the prosecution to call a res gestae witness; (2) impeachment by evidence of two unspecified convictions; and (3) error in instructing the jury. We find the second issue dispositive and remand for a new trial.
Before trial began, the prosecutor indicated that if the defendant took the stand, the prosecution intended to impeach defendant with evidence of breaking and entering in 1977, attempted breaking and entering in 1975, uttering and publishing in 1975, and attempted larceny in a building in 1967. The trial court expressed reluctance to use the 1967 conviction because of its age, and, citing People v Moseley, 94 Mich. App. 461; 290 N.W.2d 39 (1979), ruled that the 1970 uttering and publishing conviction could be referred to as an unspecified felony and the 1975 attempted breaking and entering could be referred to specifically. Defense counsel objected, stating that with one offense specified and the other unspecified, the jury might infer that the unspecified conviction related to passing bad checks. The following exchange then occurred:
"The Court: It could, perhaps. "Mr. Stiles: And I am thinking it would be the wisest way for the court would be to strike out that 1970 but since this is in your discretion and from all the circumstances —
"The Court: Or I could direct the prosecutor just to inquire whether Mr. Reynolds acquired a felony in October of '70 and also October of '75.
"Mr. Stiles: That would be somewhat better.
"The Court: Is that agreeable, Mr. Schafer?
"Mr. Schafer: I have no problem with that, your Honor."
Further consideration was postponed until the jury was selected and the prosecution obtained records of the prior convictions. Subsequently, during the trial, the court ruled that the two convictions were felonies involving dishonesty, theft and false statement, and that their probative value outweighed their prejudicial effect on defendant. The court then ruled that the prosecutor "may make inquiry in both matters as we agreed earlier".
Defendant's trial occurred in September 1980. At that time, this Court was split on the question of impeachment by evidence of unspecified prior felonies. Holding the practice error were: People v Jones, 92 Mich. App. 100, 112-113; 284 N.W.2d 501 (1979); People v Garth, 93 Mich. App. 308, 315-316; 287 N.W.2d 216 (1979), lv den 409 Mich. 854 (1980). Condoning the practice were: Moseley, supra, and People v Van Dorsten, 96 Mich. App. 356, 359; 292 N.W.2d 134 (1979). Thus, the trial court can hardly be faulted for ruling that impeachment by evidence of unspecified convictions was permissible. However, on November 19, 1980, the Supreme Court reversed Van Dorsten, stating:
Also, People v Huff, 101 Mich. App. 232, 237; 300 N.W.2d 525 (1980), decided by this Court November 1980, two months after trial in the instant case.
"[W]e reverse the Court of Appeals judgment and remand the case to the Calhoun Circuit Court for a new trial. It is improper to impeach a defendant by telling the jury only of the existence of unnamed prior felony convictions, without providing the names of the offenses. It is the nature, rather than the fact, of a prior felony conviction which the jury is to use in its evaluation of credibility." 409 Mich. 942.
Subsequent to the Supreme Court's order in Van Dorsten, this Court has ruled that impeachment by evidence of prior unspecified convictions is erroneous. People v Kramer, 108 Mich. App. 240, 245-246; 310 N.W.2d 347 (1981); People v Ovegian, 106 Mich. App. 279, 282-283; 307 N.W.2d 472 (1981); People v Slager, 105 Mich. App. 593, 596-597; 307 N.W.2d 376 (1981); People v Howard, 104 Mich. App. 598, 600; 305 N.W.2d 268 (1981).
Nevertheless, the prosecution argues that the error is not reversible on two grounds. First, since Van Dorsten was not decided until two months after defendant's trial, the ruling should not be applied retroactively. Second, the error was harmless.
The question of Van Dorsten's retroactivity is of first impression. However, where there has been a split of authority on a substantive issue in this Court and a subsequent decision of the Supreme Court resolves the dispute, in the absence of the Supreme Court ruling that the ruling be made prospective only, the decision has been given retroactive effect. People v Longwish, 109 Mich. App. 15, 18-20; 310 N.W.2d 893 (1981). It is undisputed that in Van Dorsten the Supreme Court was not making new law but was clarifying existing law. It also appears that in the instant case there had not been a profound reliance on the old rule. Finally, we note that the Supreme Court itself gave retroactive application to the Van Dorsten rule in People v Huff, supra, a case where trial occurred before Van Dorsten was decided. For this reason and for the reasons set forth in Longwish, supra, we reject the prosecution's argument that Van Dorsten should not be applied retroactively.
However, contrary to defendant's contention, the error is not reversible per se. Several post- Van Dorsten opinions have found the error harmless. Kramer, supra; Ovegian, supra. In People v McBride, 413 Mich. 341, 345; 319 N.W.2d 535 (1982), the Supreme Court acknowledged that under proper circumstances the error could be harmless.
In the instant case, we cannot find the error harmless. Following the trial court's ruling on impeachment, the defendant elected not to testify. Had he testified, he claims he would have asserted he did not know his account was closed.
"Such a theory could draw significant support from the defendant's testimony. Because the defendant did not take the stand, it is of course impossible to determine the value of the testimony he might have given. It is not clear that his decision to remain silent was a tactical move unaffected by fear of improper impeachment. See People v Denny, 86 Mich. App. 40; 272 N.W.2d 332 (1978)." People v Vincent, 94 Mich. App. 626, 635; 288 N.W.2d 670 (1980), lv den 409 Mich. 857 (1980).
Although defendant's sister, the alleged missing witness, may have been able to testify as to defendant's intent, defendant still is the only person who can offer direct evidence of his intent and knowledge at the time he wrote the checks. Although failure of defendant to testify does not mandate suppression of his prior record or reversal on appeal, People v Whigham, 102 Mich. App. 96, 103; 300 N.W.2d 753 (1980), lv den 412 Mich. 932 (1982), it is a strong factor weighing in favor of both. In this case, the evidence against defendant was largely circumstantial and far from overwhelming. In such circumstances the error cannot be harmless. McBride, supra, p 343.
Further, the similarity between the 1970 uttering and publishing conviction and the charged offense was so great, it would have been an abuse of discretion to allow specific mention of that conviction. People v Gary Johnson, 105 Mich. App. 332, 340-341; 306 N.W.2d 501 (1981); People v Williams, 413 Mich. 72; 318 N.W.2d 462 (1982).
Because the error is not harmless, defendant's convictions are reversed and the matter remanded for a new trial. Since issues (1) and (3) raised in this appeal are likely to be raised on retrial, some guidance by us will be helpful. As to issue (1), viz.: whether defendant's sister was a res gestae witness, defendant should raise the issue prior to trial. If the prosecution refuses to endorse the witness, the court should hold an evidentiary hearing prior to trial to decide whether the witness is in fact a res gestae witness. See People v Willie Pearson, 404 Mich. 698, 721-722; 273 N.W.2d 856 (1979).
As to issue (3), the adequacy of the trial court's instructions to the jury, we find no error. The specific intent to defraud necessary to commit the crime was thoroughly explained to the jury and such an intent implies knowledge of the account's status.
Reversed and remanded.