To Testify or Not to Testify? COA Says Defendants Must
The defendant was accused of having broken in to a woman's apartment and, with a silver pistol, ordered her to give him money. She told the intruder she had no money and he left, taking her purse from where she had left it in the kitchen. The police attempted to arrest defendant a short distance from the apartment, but still in the same complex, and the defendant resisted. During the struggle the Officers discovered a silver pistol on the ground where the struggle occurred, and, a short distance from where the defendant was stopped, the woman's green purse in a window well of the apartment building. McDonald claimed that he lived nearby with his girlfriend, who he named, and gave the police five different names when he was being questioned. The victim identified the defendant on scene as the perpetrator and again during a physical lineup conducted a week later.
Prior to the trial and outside the presence of the jury, Calhoun County Circuit Judge James Kingsley ruled that the prosecution could impeach McDonald, if he chose to take the stand, with a prior home invasion conviction (the opinion does not state what the specific conviction was for, nor does it state how old the conviction was).
The Court of Appeals held that McDonald had waived any right to appeal the ruling because he chose not to take the stand. The Court relied on the United States Supreme Court's ruling in Luce v United States, 469 US 38; 105 S Ct 460; 83 L Ed 2d 443 (1984), (followed by the Michigan Supreme Court in People v Finley, 431 Mich 506; 431 NW2d 19 (1988), and People v Boyd, 470 Mich 363; 682 NW2d 459 (2004)), where the Court reasoned that no error occurs to the defendant until the objectionable evidence is actually admitted in the trial. The Court dispensed with the defendant's argument that the ruling forced him to waive his right to testify in his own defense, because "...if an offer of proof is made and the court erroneously permits the introduction of hearsay, character evidence, similar acts, or the myriad of evidence objectionable under the MRE, there is no error requiring reversal unless the evidence actually is introduced. Unless the defendant actually testifies, a number of questions remain open to speculation." The Court found that, among other things, the defendant's decision not to testify could be based upon a number of reasons, the prosecution could decide against using the impeachment during the trial because the evidence comes in better than it had hoped, the judge could change his mind prior to admission of the impeachment evidence, etc. Because the defendant chooses not to testify and the evidence is not admitted, the ruling's impact on the outcome of the trial is too speculative for the appellate court to engage in any meaningful analysis of the issue. Therefore, in order for a defendant to preserve his right to appeal an adverse ruling on a Rule 609 decision, the defendant must testify and the prosecution must impeach him with the prior conviction.
Criminal defense practitioners should take note, and advise clients accordingly, that in order to preserve the issue, the client, essentially, must fall on the sword if he ever hopes to appeal an erroneous decision by a trial court allowing the jury to know that he has been previously convicted. It should be noted that in this particular case the defendant was also charged with being a felon in possession of a firearm and the fact that he was on parole at the time was also before the jury (for other reasons). Therefore, I wonder whether the defendant's decision not to testify was really based upon his fear of being impeached or whether it was based upon some other reason. I also wonder whether the Court had the same feeling.
Mr. McDonald was represented on appeal by Daniel Bremer of Burton, Michigan, and the prosecution was represented by APA Brandon Hultink of the Calhoun County Prosecutor's Office.
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