PEOPLE OF MI V DONALD E TURNERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 13, 1998
LC No. 96-003518
DONALD E. TURNER,
Before: Murphy, P.J., and Fitzgerald and Gage, JJ.
Defendant was convicted by a jury of possession of less than twenty-five grams of heroin, MCL
333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), and was sentenced as an habitual offender, fourth
offense, MCL 769.12; MSA 28.1084, to a prison term of eighteen months to fifteen years. He appeals
as of right. We affirm defendant’s conviction, but remand for resentencing.
Defendant first contends that the trial court failed to recognize its discretion when it sentenced
defendant to a maximum term of fifteen years as a fourth habitual offender. We agree. After imposing a
sentence of eighteen months to four years for the possession conviction, the trial court was advised that
defendant was charged as a fourth felony offender. The trial court then responded that, “[u]nder the
law I have to set aside that sentence. I have to change the maximum.” The trial court’s failure to
exercise its discretion because of a mistaken belief that enhancement was mandatory entitles defendant
to be resentenced on remand. People v Green, 205 Mich App 342, 346; 517 NW2d 782 (1994).
However, we reject defendant’s argument that the eighteen month to fifteen year sentence violates the
principle of proportionality under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).
Defendant next argues that the trial court abused its discretion by allowing defendant’s prior
conviction for attempted breaking and entering to be used for impeachment purposes under MRE
609(a)(2)(B). We disagree. Theft crimes are strongly probative of a witness’ veracity in comparison
with most other crimes. People v Allen, 429 Mich 558, 595; 420 NW2d 499 (1988). However, the
trial court still must consider the possible chilling effect that admission of a prior crime might have on a
defendant’s decision to testify. MRE 609(b); Allen, supra at 602. The court must also consider the
similarity of the prior conviction with the crime charged. MRE 609(b); People v Daniels, 192 Mich
App 658, 671; 482 NW2d 176 (1991). The fact that defendant actually testified at trial shows that
there was no chilling effect on his right to testify. People v Coddington, 188 Mich App 584, 595-596;
470 NW2d 478 (1991). In fact, defendant even used his prior conviction and parole status to support
his own version of events. Coddington, supra at 596. Further, there is no similarity at all between the
prior conviction and the crime charged. When there is no similarity between the two, prejudice is
minimal. Daniels, supra at 671. Because defendant’s prior conviction was highly probative and
minimally prejudicial, we conclude that the trial court did not abuse its discretion in allowing evidence of
defendant’s prior conviction. People v Taylor, 195 Mich App 57, 60; 489 NW2d 99 (1992).
Defendant also argues that the trial court erred by allowing the prosecutor to ask him if he had
lied to the police on prior occasions about his identity. This Court has held that it is inappropriate for a
prosecutor to inquire about a defendant’s use of an alias on some past, unspecified occasion. People v
Thompson, 101 Mich App 609, 613; 300 NW2d 645 (1980). Here, however, the prosecutor’s
questioning linked defendant’s use of an alias with his intent to deceive. Hence, the evidence was
relevant to defendant’s credibility and was properly admitted. Id. at 613-614; People v Messenger,
221 Mich App 171, 180; 561 NW2d 463 (1997).
Lastly, defendant asserts that the prosecutor improperly injected defendant’s character into
evidence by impeaching him with aliases, drug use, and employment status, and by calling a witness to
support these collateral matters. We disagree.
As discussed above, the prosecution’s questions regarding defendant’s aliases were proper.
Defendant failed to object to the prosecutor’s questions regarding his drug use and employment status.
We decline to review this issue because any prejudicial effect of the questions could have been cured by
a cautionary instruction and failure to review the issue will not result in a miscarriage of justice. People
v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
Defendant also failed to object to the admission of the rebuttal testimony. Because our failure to
review this issue will not result in manifest injustice, we decline to address it. People v Kelly, 423 Mich
261, 281; 378 NW2d 365 (1985).
Defendant’s conviction is affirmed, and the case is remanded for resentencing. Jurisdiction is
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
/s/ Hilda R. Gage