PEOPLE OF MI V DANIEL DERRELE MABIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 29, 2009
Plaintiff-Appellee,
v
No. 286269
Oakland Circuit Court
LC No. 2008-218685-FH
DANIEL DERRELE MABIN,
Defendant-Appellant.
Before: Davis, P.J., and Whitbeck and Shapiro, JJ.
SHAPIRO, J. (dissenting).
I respectfully dissent because I do not believe that the trial court’s error in requiring
admittance of defendant’s prior felonies can be considered harmless.
Defendant was charged with felon in possession of a firearm, MCL 750.224f and, based
on that charge, felony firearm, MCL 750.227b. Prior to selection of a jury, the defense requested
that the trial court allow defendant to stipulate to the existence of a prior felony rather than
allowing the prosecution to inform the jury of the specific prior crimes, namely armed robbery
and assault with intent to commit murder.
As noted by the majority, the specific felonies that defendant had been convicted of had
no greater relevance to this case than did the fact that defendant was convicted of an unnamed
felony. The nature of the felony, other than the fact that it is a felony, has no probative value as
to the applicability of MCL 750.224f. Whatever the prior felony was, that element of the offense
was met. The prosecution’s brief does not articulate any increased probative value resulting
from the identification of the specific felony and when asked directly about it at oral argument,
the prosecutor, quite understandably, could not define any increased probative value. Similarly,
at trial, when defendant asked that the trial court accept a stipulation that defendant was a felon,
the trial court offered no reason for its refusal to accept the stipulation stating only, “motion
denied.”
It is difficult to see how a reasonable jury, regardless of the instructions it is given, would
not be affected by the knowledge that defendant, accused in this case of having an assault rifle,
had previously been convicted of armed robbery and assault with intent to commit murder. As
noted by the Supreme Court in People v Allen, 429 Mich 558, 569; 420 NW2d 499 (1988),
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evidence of prior criminal history, particularly where it involves such disturbing offenses as
armed robbery and assault with intent to murder,
presents three types of impropriety. First, that the jurors may determine that
although defendant’s guilt in the case before them is in doubt, he is a bad man and
should therefore be punished. Second, the character evidence may lead the jury to
lower the burden of proof against the defendant, since, even if the guilty verdict is
incorrect, no “innocent” man will be forced to endure the punishment. Third, the
jury may determine that on the basis of his prior actions, the defendant has a
propensity to commit crimes, and therefore his probably is guilty of the crime
with which he is charged. All three of these dimensions suggest a likelihood that
innocent persons may be convicted. [Id. (citation omitted)].
I disagree with the majority that the evidence was so overwhelming in this case that this
error is harmless. There was evidence that a police officer using binoculars on a rainy night saw
defendant with a rifle for a brief period. Defendant had no weapon at the time he was arrested
and, although there was ammunition at his dwelling that fit the rifle, the rifle itself was not
present. I agree that there is more than sufficient evidence to convict, but that is not the standard.
Error justifies reversal if it is more probable than not that it affected the outcome. People
v Young, 472 Mich 130, 141-142; 693 NW2d 801 (2005). “An error is deemed to have been
‘outcome determinative’ if it undermined the reliability of the verdict.” Id. at 142, quoting
People v Elston, 462 Mich 751, 766; 614 NW2d 595 (2000). Given that the trial court’s error
subjected the verdict to all of the dangers set forth in Allen, I see no way to conclude anything
other than that the error influenced this verdict. This is particularly true given that the prior
felonies were repeatedly brought up. They were referenced in the trial court’s reading of the
information at the outset of jury selection, during the prosecutor’s opening statement, during the
arresting officer’s testimony, and in the prosecutor’s closing argument. A certified copy of
defendant’s conviction record for these two offense was admitted into evidence and the trial
court’s final instructions to the jury advised them that one of the elements they must find to
convict defendant of felon in possession is “defendant was convicted of armed robbery and/or
assault with intent to murder.”
Finally, the prosecution’s inability to articulate at trial, in its brief on appeal, or at oral
argument, any reason why these prior offenses should have been admitted despite the defense’s
offer to stipulate, suggests that the purpose for which they were admitted was to affect the jury in
the ways set forth as improper in Allen. We should be cautious in application of the harmless
error rule where there is good cause to believe that the evidence was offered because of, rather
than in spite of, its unfair prejudice. See People v Minor, 213 Mich App 682, 686; 541 NW2d
576 (1995) (an error can be intolerable to the judicial system if it was deliberately injected into
the proceedings by the prosecution, if it was particularly persuasive or inflammatory).
Given the inflammatory nature of the error involved, I would reverse and remand for a
new trial.
/s/ Douglas B. Shapiro
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