PEOPLE OF MI V TYRONE MARTIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 20, 2008
Plaintiff-Appellee,
v
No. 280334
Wayne Circuit Court
LC No. 07-006943-01
TYRONE MARTIN,
Defendant-Appellant.
Before: Servitto, P.J., and Donofrio and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for possession of a firearm during
the commission of a felony (felony-firearm), MCL 750.227b, felon in possession of a firearm,
MCL 750.224f, carjacking, MCL 750.529a, armed robbery, MCL 750.529, and third-degree
fleeing a police officer, MCL 257.602a(3). Defendant was sentenced to 17 to 30 years’
imprisonment for the carjacking and armed robbery convictions, two to five years’ imprisonment
for the third-degree fleeing a police officer and felon in possession of a firearm convictions, and
two years’ imprisonment for the felony-firearm conviction. This case has been decided without
oral argument pursuant to MCR 7.214(E). Because the admission of defendant’s prior
conviction for impeachment purposes did not result in a miscarriage of justice, we affirm.
On appeal, defendant argues that the trial court abused its discretion when it ruled that
evidence of his prior conviction for unarmed robbery for purposes of impeachment was
admissible, and that this abuse of discretion constitutes error requiring reversal. Defendant,
however, arguably waived review of this issue.
Generally, a defendant may not introduce evidence at trial, and then argue on appeal that
the evidence denied him a fair trial. People v Knapp, 244 Mich App 361, 378; 624 NW2d 227
(2001). Here, before defendant took the stand to testify on his own behalf, the prosecution
indicated that it intended to use defendant’s prior conviction as impeachment evidence.
Defendant objected to the introduction of the evidence. The trial court heard arguments from
both sides and then ruled that the prior conviction would be admissible. During direct
examination, defense counsel preemptively raised the issue of defendant’s prior conviction. The
prosecution did not question defendant regarding this prior conviction during cross-examination.
Michigan Courts have not ruled on whether a defendant’s preemptive introduction of his own
prior conviction, after the trial court has ruled that the conviction will be admissible for
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impeachment, bars review of the trial court’s decision. The United States Supreme Court
however, has decided this issue.
In Ohler v United States, 529 US 753; 120 S Ct 1851; 146 L Ed 2d 826 (2000), as in this
case, the trial court ruled that the defendant’s prior conviction could be used against her for
impeachment, so she preemptively raised the issue on direct examination. Id. at 755. She then
challenged the admission of her prior conviction. The Ohler court determined that by offering
the testimony herself, the defendant in Ohler denied the government its right to decide whether
to actually use her prior conviction against her after it heard her direct testimony. Id. at 758.
According to the Ohler court, appellate review is only applicable after the government has
exercised its option to elicit testimony regarding a defendant’s prior convictions. Id. at 759. Our
Supreme Court ultimately held that “a defendant who preemptively introduces evidence of a
prior conviction on direct examination may not on appeal claim that the admission of such
evidence was error.” Id. at 760.
In the instant case, defendant preemptively testified regarding his prior conviction for
unarmed robbery on direct examination. The prosecution did not cross-examine defendant on
the subject or elicit further testimony from him with respect to that conviction. Therefore,
defendant has arguably waived his right to review the trial court’s decision to admit this
evidence. In any event, reviewing the merits of defendant’s argument on appeal leads us to
conclude that reversal is not warranted.
A trial court’s decision to admit evidence is reviewed for abuse of discretion. People v
Martin, 271 Mich App 280, 315; 721 NW2d 815 (2006). An abuse of discretion has occurred
“when the trial court chooses an outcome that falls outside the range of reasonable and principled
outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). A trial court’s
decision on a close legal question ordinarily cannot constitute an abuse of discretion, though its
application of an incorrect legal framework can. People v Hine, 467 Mich 242, 250-251; 650
NW2d 659 (2002) (quoting Dep’t of Transportation v Randolph, 461 Mich 757, 768; 610 NW2d
893 (2000)).
In People v Meshell, 265 Mich App 616, 634-635; 696 NW2d 754 (2005) (quoting MRE
609), this Court held that evidence of a witness’s prior convictions can only be admitted to
impeach that witness’s credibility when:
(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 in a criminal trial, the court
further determines that the probative value of the evidence outweighs its
prejudicial effect.
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For crimes that involve an element of theft, Meshell, supra at 635, supplies the following
explanation for the balancing test required:
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.
Unarmed robbery, the prior conviction admitted by the trial court in this case, contains an
element of theft (See, People v Randolph, 242 Mich App 417, 419; 619 NW2d 168 (2000),
reversed in part on other grounds, People v Randolph, 466 Mich 532, 648 NW2d 164 (2002))
and is punishable by up to 15 years’ imprisonment (MCL 750.530). The trial court was thus
required to apply, on the record, the balancing test set forth in Meshell, supra at 635.
In consideration of the probative value of defendant’s unarmed robbery conviction, the
trial court considered that less than a year had elapsed since its commission, and recognized that
the crime included an element of theft. While considering the prejudicial effect that admission of
the prior conviction would have, the trial court compared unarmed robbery to the charged
offenses of fleeing a police officer, carjacking, and armed robbery, as well as the fact that the
charge for felon in possession of a firearm already alerted the jury to the existence of defendant’s
prior criminal record. The trial court did not expressly articulate its findings with respect to
either the degree to which an unarmed robbery conviction is indicative of veracity or the effect
that defendant’s decision not to testify might have on the trial proceedings. However, as
indicated in Meshell, a failure to articulate specific factors on the record is not grounds for
reversal if “the trial court was aware of the pertinent factors and its discretion.” Meshell, supra
at 638. In the instant case, while the trial court failed to address only two of the listed factors, its
decision indicates that it was aware of both its discretion and the proper balancing test. Thus,
reversal is not warranted.
Defendant next argues that the trial court abused its discretion in allowing admission of
his prior conviction because the conviction for unarmed robbery is too similar to the charged
offenses of armed robbery and carjacking to pass the balancing test. We agree.
In People v Allen, 429 Mich 558, 611; 420 NW2d 499 (1988), the trial court allowed one
of the defendants (Brooks) who was charged, in 1981, with armed robbery and felony-firearm to
be impeached with evidence of his prior conviction for unarmed robbery in 1981, and two prior
convictions for armed robbery in 1975. Id. The Michigan Supreme Court ruled that the
evidence should have been excluded because the similarity between armed robbery and unarmed
robbery was highly prejudicial, and because the defendant was the only witness offered by the
defense at trial. Id. at 612. Similarly, in the instant case, these same prejudicial factors also
outweigh the moderately probative value of the prior conviction, and the evidence should have
been excluded.
Although the evidence of defendant’s prior conviction should have been excluded, a
conviction shall not be overturned based on the improper admission of evidence unless, upon
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review of the entire case, it appears that the error resulted in a miscarriage of justice. People v
Young, 472 Mich 130, 141; 693 NW2d 801 (2005). Defendant argues, citing People v Therrien,
97 Mich App 633, 635; 296 NW2d 8 (1979), that the error in this case resulted in a miscarriage
of justice because the conviction rested exclusively on the outcome of a credibility contest, and
evidence used to impeach credibility is not harmless in cases where the trial was a credibility
contest. However, this Court reached its decision to reverse the defendant’s convictions in
Therrien on the ground that the only evidence offered to prove the guilt of the defendant was the
testimony of the complainant. Id. In the instant case, defendant’s convictions were not based on
a credibility contest, because they were not based solely on the testimony of the complainant.
Defendant admitted that he stole the vehicle. The complainant affirmatively identified
defendant as the person who robbed him, and defendant offered no explanation for why the
complainant would have perjured himself. While driving the stolen vehicle, defendant fled the
police. When he was arrested, he was found with the complainant’s social security card and
identification in his pocket. Further, defendant’s credibility was weakened by the fact that he
admitted that he lied to police and gave a false name when he was arrested. Although
defendant’s prior conviction was improperly admitted and would have served to weaken the
defendant’s credibility, the evidence supporting defendant’s convictions (absent defendant’s
testimony) was overwhelming, and any error caused by the improper admission of his prior
conviction did not result in a miscarriage of justice.
Affirmed.
/s/ Deborah A. Servitto
/s/ Pat M. Donofrio
/s/ Karen M. Fort Hood
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