PEOPLE OF MI V APOLLO D WADE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 3, 2004
Plaintiff-Appellee,
v
No. 247208
Wayne Circuit Court
LC No. 02-010252
APOLLO D. WADE,
Defendant-Appellant.
Before: Schuette, P.J., and Bandstra and Cooper, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial conviction of armed robbery, MCL 750.529;
carjacking, MCL 750.529a; and possession of a firearm during the commission of a felony, MCL
750.227b. Defendant was sentenced to 15 to 25 years’ imprisonment on the armed robbery and
carjacking counts, and was sentenced to 2 years’ imprisonment on the felony-firearm count.
Defendant appeals as of right. We affirm.
This case arises out of defendant’s armed robbery and carjacking of Maurice Haggen.
Haggen was driving his 1992 Eldorado and Damon Williams was riding as a passenger. They
were en route to Williams’ house, when they saw defendant on the sidewalk, and pulled over to
the curb to talk. According to Haggen, defendant got into the car, and when they stopped in
front of Williams’ house, defendant produced a handgun, pointed it at him, and demanded his
money. Haggen told defendant that he did not have any money, and started driving away. As
they were driving, defendant took $2,200 in cash out of Haggen’s pocket, and approximately
$13,500 worth of jewelry off of Haggen’s person. Haggen stopped the car at an intersection and
attempted to escape, but defendant threatened to shoot him in the leg and to shoot the television
set that was mounted in the car. Defendant then fired a shot into the console, and Haggen
resumed driving. When Haggen again stopped the car, he and Williams got out and ran away.
Defendant fired two more shots, and then got into the driver’s seat and drove away. Haggen’s
car was recovered the following day, stripped and abandoned.
Defendant’s theory of the case was that Haggen and Williams drove up to his aunt and
uncle’s house, where he was standing on the porch, and asked him if he wanted to make some
money. Defendant maintained that Haggen and Williams got out of the car, gave him the keys,
and offered to pay him $200 if he would strip the car of its parts, so that Haggen could recover
on an insurance claim. Defendant maintained that he was accused of carjacking when he failed
to give some of the stripped parts back to Haggen for resale.
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Defendant first argues that he was denied the effective assistance of counsel because his
trial attorney failed to investigate the case and call purported eyewitnesses to testify on his
behalf. “Because defendant failed to move for a new trial or request a Ginther1 hearing below,
our review of this issue is limited to mistakes apparent on the appellate record.” People v Davis,
250 Mich App 357, 368; 649 NW2d 94 (2002). “If the record does not contain sufficient detail
to support defendant’s ineffective assistance claim, then he has effectively waived the issue.” Id.
Decisions regarding what evidence to present and whether to call or question witnesses
are presumed to be matters of trial strategy, and we will not substitute our judgment for that of
counsel regarding such matters. Davis, supra at 368. Additionally, defendant must overcome a
strong presumption that the assistance of his counsel was sound trial strategy, and he must show
that, but for counsel’s error, the outcome of the proceedings would have been different. People v
Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). Defendant claims
that his counsel was ineffective for failing to call purported eyewitnesses who would have
substantiated his claim that Haggen solicited him to strip the car so that he could recover on an
insurance claim. However, at trial, defendant never claimed that anyone witnessed the alleged
business agreement, and the record does not suggest how such witnesses could have benefited
defendant’s case. Even defendant’s affidavit listing purported eyewitnesses, filed after the trial
proceedings, does not suggest that they would have corroborated his version of events. Further,
the affidavit suggests that trial counsel attempted to talk to the alleged witnesses, albeit
unsuccessfully.
Because there is no evidence on the record to support defendant’s assertion, he has
effectively waived the issue for review. People v Marji, 180 Mich App 525, 533; 447 NW2d
835 (1989). Further, defendant failed to demonstrate a reasonable probability that, even if
defense counsel had called the alleged eyewitnesses, the outcome of the proceedings would have
been different. Defendant has failed to meet his burden of proving ineffective assistance of
counsel, and is not entitled to relief on this basis.
Defendant next argues that the evidence at trial was insufficient to support his conviction
for carjacking. We disagree. In determining whether sufficient evidence has been presented to
sustain a conviction, a reviewing court must view the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could have found that the essential
elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508,
515; 489 NW2d 748 (1992). The reviewing court is required to draw all reasonable inferences
and make credibility determinations in support of the jury verdict. People v Nowack, 462 Mich
392, 400; 614 NW2d 78 (2000).
“In order to prove carjacking, the prosecution must prove (1) that the defendant took a
motor vehicle from another person, (2) that the defendant did so in the presence of that person, a
passenger, or any other person in lawful possession of the motor vehicle, and (3) that the
defendant did so either by force or violence, by threat of force or violence, or by putting another
in fear.” People v Green, 228 Mich App 684, 694; 580 NW2d 444 (1998). Defendant argues on
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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appeal that while the evidence arguably supports the prosecutor’s contention that he took
Haggen’s jewelry and cash by force or threat of force, it does not support the assertion that he
took Haggen’s vehicle by force or threat of force. However, Haggen testified that defendant
took his cash and jewelry at gunpoint and threatened to shoot the television in the car and shoot
him in the leg when he attempted to escape. Defendant then fired a shot into the console, and
Haggen resumed driving; when Haggen again stopped the car, he and Williams got out and ran
away, while defendant fired two additional shots. As a result of defendant’s conduct, Haggen
feared for his safety.
Viewing the evidence in a light most favorable to the prosecution, a rational jury could
conclude that defendant took Haggen’s car while putting him in fear and using force and
violence. There was sufficient evidence to sustain defendant’s conviction for carjacking, and
defendant is not entitled to relief on this basis.
Finally, defendant argues that the trial court abused its discretion in allowing his 1994
conviction for receiving and concealing stolen property, MCL 750.535, to be used to impeach his
credibility as a witness. Defendant argues that receiving and concealing stolen property does not
contain an element of theft as required for admission pursuant to MRE 609(a)(2). Further,
defendant argues that even if the crime of receiving and concealing stolen property does contain
a theft element, its prejudicial effect outweighed its probative value, in contravention of MRE
609(a)(2)(B) and MRE 609(b).
We review a trial court’s decision to allow impeachment by evidence of a prior
conviction for an abuse of discretion. People v Coleman, 210 Mich App 1, 6; 532 NW2d 885
(1995). An abuse of discretion is found only if an unprejudiced person, considering the facts on
which the trial court acted, would say there was no justification or excuse for the ruling made.
People v Williams, 240 Mich App 316, 320; 614 NW2d 647 (2000).
A witness’ credibility may be impeached with evidence of prior convictions if the criteria
set forth in MRE 609 are satisfied. MCL 600.2159; People v Nelson, 234 Mich App 454, 460;
594 NW2d 114 (1999). MRE 609 provides in pertinent part:
(a) For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime shall not be admitted unless the evidence
has been elicited from the witness or established by public record during cross
examination, and
(1) the crime contained an element of dishonesty or false statement, or
(2) the crime contained an element of theft, and
(A) the crime was punishable by imprisonment in excess of one
year or death under the law under which the witness was
convicted, and
(B) the court determines that the evidence has significant probative
value on the issue of credibility and, if the witness is the defendant
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in a criminal trial, the court further determines that the probative
value of the evidence outweighs its prejudicial effect.
(b) For purposes of the probative value determination required by subrule
(a)(2)(B), the court shall consider only the age of the conviction and the degree to
which a conviction of the crime is indicative of veracity. If a determination of
prejudicial effect is required, the court shall consider only the conviction’s
similarity to the charged offense and the possible effects on the decisional process
if admitting the evidence causes the defendant to elect not to testify. The court
must articulate, on the record, the analysis of each factor.
Contrary to defendant’s argument, for purposes of MRE 609, our Court considers
receiving and concealing stolen property to be a theft crime. See People v Clark, 172 Mich App
407, 418-420; 432 NW2d 726 (1988) and People v Dinsmore, 166 Mich App 33; 420 NW2d 167
(1988); People v Dinsmore, 430 Mich 894; 425 NW2d 91 (1988) [remanded for reconsideration
in light of People v Allen, 429 Mich 558, 605-606; 420 NW2d 499 (1988)]; People v Dinsmore
(On Remand), 172 Mich App 561, 562; 432 NW2d 324 (1988). Therefore, we must consider the
balancing test set forth in MRE 609(b) and articulated by our Supreme Court in Allen, supra at
605-606:
[T]he trial judge [may] exercise his discretion in determining the admissibility of
evidence by examining the degree of probativeness and prejudice inherent in the
admission of the prior conviction. 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 [sh]ould 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 [sh]ould 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 [sh]ould be inadmissible.
Because the crime of receiving and concealing stolen property is a theft crime, it is
moderately indicative of veracity, and thus has moderate probative value. Clark, supra at 419.
Our Supreme Court has held that “for those convictions occurring less than ten years prior to the
relevant case, the vintage of the prior conviction and the defendant’s behavior subsequent to that
conviction are relevant to probativeness.” Allen, supra at 606, n 32. Here, defendant was
convicted of receiving and concealing stolen property in 1994; therefore, his conviction was
eight years old at the time of trial, and thus has only minimal probative value.
Pursuant to MRE 609(b), “if a determination of prejudicial effect is required, the court
shall consider only the conviction’s similarity to the charged offense and possible effects on the
decisional process if admitting the evidence causes the defendant to elect not to testify.”
Receiving and concealing stolen property, MCL 750.535, is classified under the “stolen,
embezzled or converted property” section of the Michigan Penal Code, and is categorized as a
crime against property in the Michigan Sentencing Guidelines Act, MCL 777.16z. Conversely,
armed robbery, MCL 750.529, and carjacking, MCL 750.529a, are classified under the “robbery”
section of the Michigan Penal Code, and are categorized as crimes against persons in the
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Michigan Sentencing Guidelines Act, MCL 777.16y. However, the stolen property that
defendant was convicted of receiving and concealing was a car, thereby increasing the similarity
between the charged offense and the prior conviction. Additionally, defendant’s decision to
testify was critical to his defense, because the case was primarily a credibility contest between
Haggen and Williams, and defendant. People v Johnson, 170 Mich App 808, 810-811; 429
NW2d 237 (1988); People v Minor, 170 Mich App 731, 736-737; 429 NW2d 229 (1988).
Although defendant still testified and was able to present his theory of the case, the prejudicial
impact of impeachment with the use of evidence of a conviction for a similar crime outweighed
the limited probative value of the evidence. Under Clark, supra at 419, because the
probativeness did not outweigh the prejudice, we conclude that the trial court abused its
discretion in allowing defendant to be impeached by evidence of his prior conviction for
receiving and concealing stolen property.
However, on the facts presented, we conclude that the error in allowing defendant to be
impeached by evidence of his prior conviction for receiving and concealing stolen property was
harmless and does not require reversal because defendant has not demonstrated prejudice.
People v McDaniel, 256 Mich App 165, 168; 662 NW2d 101 (2003). “The error is presumed
harmless, and the defendant bears the burden of showing that the error resulted in a miscarriage
of justice.” Id., citing People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999) and
People v Lukity, 460 Mich 484, 493-494; 596 NW2d 607 (1999).
In the instant case, Haggen and Williams provided credible and consistent accounts of the
incident, and testified that defendant robbed Haggen at gunpoint and took his car. Further, the
prosecutor only briefly questioned defendant about his prior conviction during crossexamination, did not refer to the crime by name, and did not mention it during closing argument.
We find no basis to conclude that it is more probable than not that error in allowing defendant to
be impeached with evidence of his prior conviction undermines the reliability of the jury’s
verdict. McDaniel, supra at 169. Accordingly, defendant is not entitled to relief on this basis.
We affirm.
/s/ Richard A. Bandstra
/s/ Jessica R. Cooper
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