People v. McBride

Per Curiam. At the defendant’s trial on six counts of uttering and publishing forged instruments, 1 he moved to exclude reference to his prior conviction of counterfeiting. 2 The trial court ruled that if the defendant testified, his credibility as a witness could be impeached by evidence that the defendant had previously been convicted of a felony without informing the jury of the nature of that felony. The defendant ultimately did not testify. He contends that the ruling of the trial court in this regard prompted this decision. We conclude that the trial court’s ruling was erroneous and that the error was not harmless. I Prior to the commencement of trial, the defendant moved to exclude reference to his prior felony conviction. Defense counsel informed the court that it was "very probable” that the defendant would testify. Defense counsel also pointed out that the prior conviction was of a crime which was very similar to the charge of which the defendant was accused. The trial court responded: "[I]t is my judgment that the prosecutor will be permitted, should the defendant choose to put his credibility in issue by taking the stand, the prosecutor will be permitted to inquire of him with regard to any prior felony convictions, but just convictions, not as to the label of the conviction. I’m inclined to agree with you, Mr. Rundell [defense counsel], reference to the specific nature of the crime charged for which your client was convicted has an opportunity, it seems to me, to create *343 a prejudicial circumstance that would far outweigh its probative value. The only probative value of testing the respondent’s credibility. I am concerned that the juror listening to the label of the earlier conviction is liable to conclude that he is guilty of this crime, and the elements of this crime, because of the former crime, and it’s not the purpose for which it is permitted in the first place. Its purpose is only to question credibility and believability. "So, I think if Mr. Mitchell [assistant prosecuting attorney] limits himself to inquiry as to whether or not the respondent has a prior conviction, the date of that conviction, that’s enough for the purpose of credibility, but no specific reference to the kind of crime it was.” The defendant did not testify. The Court of Appeals majority, in an unpublished per curiam opinion, noted that other panels of that Court had ruled that it was error to admit evidence of a prior felony conviction without specifying the nature of the crime, citing People v Jones, 92 Mich App 100; 284 NW2d 501 (1979), and People v Garth, 93 Mich App 308; 287 NW2d 216 (1979). However, the majority held that the trial court’s error in this case was harmless in light of the "overwhelming” evidence of the defendant’s guilt. In dissent, Judge T. M. Burns wrote: "Contrary to what the majority believes, I do not find evidence implicating defendant in this crime to be 'overwhelming’. The only evidence adduced at trial directly linking defendant to this crime was the testimony of his accomplice, Joan Rates, who had been released on a personal bond and had had other charges pending against her dropped after she agreed to testify against defendant. Further, we should not lose sight of the fact that because of the lower court ruling on this point, defendant did not take the stand and testify on his own behalf. In cases such as the instant case where *344 the only evidence connecting defendant directly with the crime comes from an admitted accomplice, where the jury’s determination of defendant’s guilt or innocence will rest primarily upon the credibility of the accomplice’s testimony, where the facts on which defendant will attempt to defend himself lie primarily within his own unique knowledge, and where the defendant fails to testify on his own behalf because of an erroneous evidentiary ruling by the trial judge, I believe that we must reverse. Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967); People v Hughes, 93 Mich App 333, 342; 287 NW2d 226 (1979) (T. M. Burns, J., dissenting). "The test for whether a lower court ruling that is admittedly erroneous should be the basis for reversal is not, as the majority opinion would seem to imply, whether the evidence of defendant’s guilt is 'overwhelming’. Rather, it is whether the erroneous lower court ruling is harmless beyond a reasonable doubt. I cannot say that the erroneous lower court ruling in this case is harmless beyond a reasonable doubt. Therefore, I would reverse defendant’s conviction and remand this case for a new trial.” The defendant has filed an application for leave to appeal, and the prosecutor has filed a response. II In People v VanDorsten, 409 Mich 942 (1980), we issued an order in which we stated in relevant part: "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.” *345 We note the observations made by Chief Judge Danhof in People v Garth, supra, 93 Mich App 317-318: "Felony convictions cover a wide range of activities from advocating polygamy, MCL 750.441; MSA 28.696, through perjury in a court of law, MCL 750.422; MSA 28.664, to felony murder, MCL 750.316; MSA 28.548. Because many felonious activities have little if any relationship to veracity, a prior felony conviction is not in itself a reliable indication of lack of credibility. Without knowledge of the nature of the felony, the trier of fact has no probative evidence to consider, merely an amorphous suggestion that defendant’s past is blameworthy.” While we recognize that the trial court was seeking to minimize the potential for prejudice to the defendant, the fact remains that it was error to rule that impeachment by virtue of a prior unnamed felony would be permissible. Furthermore, we agree with Judge T. M. Burns’ dissent, quoted supra, that, under the circumstances of this case, the error cannot be said to have been harmless. Our resolution of this issue makes it unnecessary to discuss defendant’s other allegations of error. Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and of the Oakland Circuit Court, and we remand the case to the Oakland Circuit Court for a new trial. Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred. Footnotes [1] MCL 750.249; MSA 28.446. [2] A federal offense.