Opinion
Docket No. 108390.
Decided August 17, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Harold F. Closz, III, Prosecuting Attorney, and Judith K. Simonson, Senior Assistant Prosecuting Attorney, for the people.
Vander Ploeg, Ruck, Luyendyk Wells (by Douglas M. Hughes), for defendant on appeal.
Before: KELLY, P.J., and BEASLEY and McDONALD, JJ.
This case is before us on remand following the Supreme Court's vacating of our earlier opinion and its order to reconsider our previous decision in light of its holding in People v Allen, 429 Mich. 558; 420 N.W.2d 499 (1988). 430 Mich. 872 (1988).
Defendant, following a jury trial, was found guilty of breaking and entering with intent to commit a felony, MCL 750.110; MSA 28.305, and sentenced to three to ten years imprisonment. We originally affirmed, unpublished opinion per curiam of the Court of Appeals, decided August 24, 1987 (Docket No. 92917). However, in light of People v Allen, we reverse.
The conviction was based on a break-in of a garage in Muskegon, Michigan, on December 1, 1985. Defendant testified at trial and denied being in the vicinity of the garage at the time the breakin took place. Over defense counsel's objection, on cross-examination the prosecution questioned defendant about a 1982 Georgia conviction for burglary. Defendant admitted the prior conviction.
Just as it did the first time this case was before this Court, it is this impeachment of the defendant with evidence of a prior conviction that forms the sole subject of this remand. In People v Allen, the Supreme Court devised a clarified balancing test for those cases, such as the instant case, decided prior to the effective date of the new MRE 609 (March 1, 1988), yet still pending on appeal at the time of the Allen decision. This new clarified balancing test seeks to determine the relevance of impeachment evidence by balancing probativeness against prejudice, but in the following limited manner:
For purposes of the probativeness side of the equation, only an objective analysis of the degree to which the crime is indicative of veracity and the vintage of the conviction would be considered, not either party's need for the evidence. For purposes of the prejudice factor, only the similarity to the charged offense and the importance of the defendant's testimony to the decisional process would be considered. The prejudice factor would, of course, escalate with increased similarity and increased importance of the testimony to the decisional process. Finally, unless the probativeness outweighs the prejudice, the prior conviction would be inadmissible. [ People v Allen, 606.]
Since the crime of burglary is moderately indicative of veracity, it has moderate probative value. People v Allen, 610-611. The recent 1982 vintage of the crime also adds to its probative value. However, because the crime used to impeach defendant was very similar to the crime charged, its prejudicial impact was great. Although defendant still testified and was thereby able to present his defense, the prejudicial impact of impeachment with the use of evidence of a conviction for a similar crime outweighed the limited probative value of this evidence. On this basis, we conclude that it was error to allow defendant's impeachment through the use of evidence of the previous burglary conviction.
Furthermore, on the facts presented, we cannot conclude that this error was harmless. The only defense presented was the testimony of defendant and codefendant Bell. The evidence supporting the charge was circumstantial. Had defendant's credibility not been called into question by the use of the impeachment evidence, we cannot conclude beyond a reasonable doubt that defendant, nevertheless, would have been convicted.
Reversed and remanded for a new trial.