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Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people. Rose Mary C. Robinson, for defendant on appeal.
Judges
  • D.C. RILEY, J. (dissenting).
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Cites
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Citation Codes
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citation codes
Docket Number
Attorney(S)
  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor's Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people. Rose Mary C. Robinson, for defendant on appeal.
Judges
  • D.C. RILEY, J. (dissenting).
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Smart Summary

Summary of People v. Roberson, Docket No. 77-3575 (Mich. Ct. App. May 21, 1979)

Factual and Procedural Background

On June 11, 1976 (early morning), the 14-year-old complaining witness, Yvette Brown, who had run away two days earlier, was accosted after leaving a bus at Northland Shopping Center. Defendant threatened her with a gun, forced her to perform oral sex in an alley and inside a house, and threatened to kill her and her mother if she notified the police. Ms. Brown returned home and reported the incident; she identified the house and later identified defendant at a police lineup. Defendant was arrested at his home at 5:30 a.m., and a handgun was seized from his bedroom.

Defendant was tried by jury and on May 11, 1977 was convicted of first-degree criminal sexual conduct (MCL 750.520b(1)). On May 20, 1977 he was sentenced to 70 to 110 years imprisonment with a recommendation of no parole for at least 50 years. Defendant appealed as of right.

Legal Issues Presented

  1. Whether the trial court erred in denying defendant's request for substitution (appointment) of new counsel.
  2. Whether the trial court abused its discretion in admitting evidence of defendant's prior felony convictions for impeachment.
  3. Whether testimony by the complainant's mother recounting the complainant's account was inadmissible hearsay.
  4. Whether the trial court erred by failing to give additional jury instructions on the issue of identification.
  5. Whether the prosecutor's closing argument contained prejudicial remarks warranting reversal.
  6. Whether the sentence was improper because it was based solely on the nature of the offense or punished the exercise of the right to trial.
  7. Whether defendant was denied effective assistance of counsel at trial.

Arguments of the Parties

Defendant's Arguments

  • Requested substitution of counsel on the day of trial due to disputes with trial counsel (wanted certain alibi witnesses called and complained about lack of evidentiary hearing on seized items).
  • Objected to admission of prior felony convictions for impeachment.
  • Objected that the complainant's mother's testimony recounting the victim's account was hearsay and inadmissible.
  • Contended the trial court failed to instruct the jury adequately on identification.
  • Asserted prosecutor made numerous prejudicial remarks during closing argument.
  • Argued sentence was imposed based only on the nature of the offense and that he was punished for exercising his right to a jury trial.
  • Alleged ineffective assistance of counsel, specifying eleven errors or omissions (including opening statement content and trial strategy decisions).

The People (Prosecution) — Positions reflected in the record

  • Opposed substitution of counsel; trial counsel agreed to call the alibi witnesses and the court held a pretrial hearing on admissibility of seized evidence.
  • Asserted and presented defendant's prior record (prosecutor listed three felony convictions and one pending case) and relied on the trial court's discretion to admit felony convictions for impeachment if defendant testified.
  • Responded to hearsay objection by relying on res gestae or similar exceptions and the victim's subsequent in-court testimony.
  • Maintained that existing jury instruction—that identity must be proved beyond a reasonable doubt—was sufficient.
  • Did not lodge contemporaneous objections at trial to the prosecutor's closing remarks (record shows no trial objections to several comments).
  • Argued that the sentence was within statutory limits and appropriately reflected defendant's past record.
  • Implicitly defended the adequacy of counsel by pointing to reasonable trial strategy and the absence of a Garcia-standard violation.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v Charles O Williams, 386 Mich. 565, 578 Requirement that defendant show a legitimate reason to obtain appointment of new counsel. Cited to support denial of substitution because defendant's complaints were resolved before trial.
People v Bradley, 54 Mich. App. 89, 94-96 Example of failure to meet burden for substitution of counsel. Used as supporting authority that defendant did not establish need for new counsel.
People v Jackson, 391 Mich. 323, 336 Admission of prior convictions for impeachment is committed to trial court's discretion. Applied to justify that the trial judge's admission of prior convictions rested within his discretion.
People v Cherry, 393 Mich. 261 Trial judge must recognize on the record his discretion regarding admission of prior convictions. Noted that the trial judge recognized his discretion when admitting the evidence.
People v Crawford, 83 Mich. App. 35, 39 Trial judge should exercise discretion with reference to three specific criteria when admitting prior convictions. Majority noted the criteria but held absence of explicit on-record discussion did not establish error; dissent argued for on-the-record balancing.
People v McCartney, 60 Mich. App. 620, 624 Error occurs when trial judge places burden on defendant to justify exclusion of priors. Cited as an example of improper procedure to avoid; dissent emphasized prosecution must justify admission.
People v Dennis Johnson, 85 Mich. App. 181, 183-184 Error occurs when trial judge delegates admissibility decision to the parties. Cited as an example of improper practice to avoid in admitting priors.
People v Baldwin, 405 Mich. 550 Error where judge misconstrues factors to favor admission rather than exclusion. Cited as an example of misapplication to avoid when admitting prior convictions.
People v Spalding, 42 Mich. App. 492, 499-500 Res gestae exception to the hearsay rule for statements made shortly after the event while under stress. Applied to uphold admission of the complainant's mother's testimony recounting the victim's statement within 45 minutes of the assault.
People v Reed, 393 Mich. 342, 350-351 Referenced as having overruled Spalding on other grounds. Noted in connection with the res gestae authority but did not alter the court's conclusion about admissibility and cumulative nature.
People v Carson, 87 Mich. App. 163 Cumulative testimony that duplicates the victim's in-court testimony is not prejudicial. Applied to find the mother's testimony cumulative and non-prejudicial.
People v Manuel Johnson, 58 Mich. App. 347, 355-356 Principle that a basic instruction that identity must be proved beyond a reasonable doubt may be sufficient absent a request for further instruction. Applied to reject claim of instructional error on identification because no additional request was made.
People v Caldwell, 78 Mich. App. 690, 692 Prosecutor may argue reasonable inferences about credibility drawn from witnesses' testimony. Used to justify prosecutor's remarks about the dubious credibility of defendant's alibi witnesses.
People v Adams, 48 Mich. App. 595, 603 Brief reference by prosecutor to "reasonable doubt" does not necessarily usurp the court's role. Applied to find that a brief reference in closing did not violate the court's instructional role.
People v McLott, 70 Mich. App. 524, 527 Sentence within statutory limits will not be disturbed absent record support for improper considerations. Applied to affirm the sentence as within statutory limits and reflecting defendant's record.
People v Malchi White, 81 Mich. App. 226, 229 Trial strategy decisions do not, by themselves, constitute ineffective assistance of counsel. Applied to reject several of defendant's ineffective-assistance claims grounded in trial strategy.
People v Garcia, 398 Mich. 250 Standard for evaluating claims of ineffective assistance of counsel. Referenced as the benchmark; court concluded no violation of the Garcia standard occurred.
People v Robinson, 386 Mich. 551 Authority cited by dissent in assessing harmlessness and possible exclusionary prejudice. Dissent invoked this authority to argue the error (lack of on-the-record balancing of priors) was not harmless beyond a reasonable doubt and warranted reversal.
People v Sherman Hall, 77 Mich. App. 456, 461 Cited by dissent among authorities addressing prejudice and harmless error in similar contexts. Dissent relied on this case as part of the supporting authority for reversal.
People v Heard, 58 Mich. App. 312, 316 Cited by dissent in connection with harmless-error and impeachment issues. Invoked by dissent to support conclusion that the error could not be deemed harmless beyond a reasonable doubt.
Gordon v United States, 127 US App DC 343; 383 F.2d 936 Guidance cautioning admission of prior convictions similar to the charged offense; suggests limiting impeachment by similar crimes. Dissent cited Gordon to argue that prior convictions for substantially similar conduct should be admitted sparingly and that trial courts should explicitly balance factors on the record.
Luck v United States, 121 US App DC 151; 348 F.2d 763 Related guidance regarding admission of similar prior offenses for impeachment. Cited by dissent along with Gordon as persuasive authority for careful on-the-record balancing.

Court's Reasoning and Analysis

The majority opinion (Cynar, P.J.) addressed each of defendant's contentions in turn:

  • Substitution of Counsel: The court held that substitution requires the defendant to show a legitimate reason. Because counsel agreed to call the requested alibi witnesses and the court held an evidentiary hearing on seized items, the defendant failed to demonstrate the need for new counsel. People v Charles O Williams and People v Bradley were cited.
  • Admission of Prior Convictions: The court noted that admitting prior convictions for impeachment is within the trial judge's discretion (People v Jackson) and that the judge must recognize that discretion on the record (People v Cherry). Although the trial judge did not explicitly discuss the three Crawford criteria on the record, the majority declined to require an on-the-record recitation of those factors in every case and refused to presume the judge failed to consider them absent affirmative misapplication. Therefore, the admission of priors did not constitute reversible error.
  • Mother's Testimony (Hearsay): The mother's recounting of the victim's statement was held admissible under the res gestae exception (People v Spalding). Because the victim also testified at trial, the mother's testimony was cumulative and not prejudicial (People v Carson).
  • Identification Instruction: The jury was instructed that it must find beyond a reasonable doubt that defendant committed the offense. Defense counsel did not request additional instructions. Under these circumstances and existing authority (People v Manuel Johnson), the court found no instruction error.
  • Prosecutor's Closing Argument: Because no contemporaneous objections were made, and because the prosecutor's comments were limited to facts or legitimate inferences (People v Caldwell), and the brief reference to "reasonable doubt" did not usurp the court's role (People v Adams), the court found no reversible error.
  • Sentence: The court found the sentencing judge considered defendant's past record and imposed a sentence within statutory limits (People v McLott); thus, the sentence was not disturbed.
  • Ineffective Assistance of Counsel: Several alleged deficiencies were strategic (e.g., opening statement, rejecting lesser-included offense instructions) and therefore not cognizable as ineffective assistance (People v Malchi White). Reviewing the remaining alleged deficiencies against the Garcia standard, the court concluded there was no violation.

The dissenting opinion (D.C. Riley, J.) disagreed specifically on the admission of prior convictions. The dissent contended that where the law (Jackson and Crawford) prescribes balancing specific factors, the trial judge should perform and state that balancing on the record so appellate review is possible. The dissent reproduced the colloquy in which the prosecutor summarized defendant's prior record and the judge immediately ruled to permit felony convictions if defendant testified. The dissent argued this was a perfunctory ruling without on-the-record balancing, that two of the prior convictions were sexual offenses and were remote in time, and that the ruling likely induced defendant to remain silent. Citing Gordon and Luck, the dissent urged that similar convictions be admitted sparingly and that the absence of on-the-record consideration precluded meaningful appellate review and may not be harmless beyond a reasonable doubt.

Holding and Implications

Holding: The judgment of the trial court was Affirmed.

Implications:

  • Direct effect: Defendant's conviction for first-degree criminal sexual conduct and his sentence (70–110 years with a recommendation of no parole for at least 50 years) were affirmed.
  • The majority affirmed that a trial judge's acknowledgment of discretion in admitting prior convictions, without an explicit on-the-record discussion of the Crawford factors, is not necessarily reversible error absent an affirmative showing of misapplication. The dissent records a contrary view advocating an on-the-record balancing requirement for appellate review. The opinion does not purport to establish a new statewide rule beyond the majority's interpretive approach.

Opinion authorship: Majority by CYNAR, P.J.; concurrence by D.E. HOLBROOK, JR., J.; dissent by D.C. RILEY, J.

Show full summary ...

PEOPLE v. ROBERSON

CYNAR, P.J.

On May 11, 1977, defendant was convicted by a jury of first-degree criminal sexual conduct, a violation of MCL 750.520b(1); MSA 28.788(2)(1). On May 20, 1977, he was sentenced to 70 to 110 years imprisonment, with a recommendation that he not be paroled for at least 50 years. Defendant now appeals as of right.

Defendant's conviction arose out of events occurring in the early morning hours of June 11, 1976. Two days previously, the complaining witness, Yvette Brown, age 14, had run away from home. She feared her parents would punish her because she had failed almost all of her classes at school. On the evening of June 10, 1976, she boarded a bus at Northland Shopping Center and stayed on the bus until being told that the day's run had ended. Upon alighting from the bus, she walked toward a restaurant, but was accosted by a man, later identified as defendant, who threatened her with a gun. The two walked to an alley, where he forced her to commit fellatio. They entered a house, where he forced her again to commit fellatio. He then told her to go home and threatened to kill her and her mother if she called the police.

Ms. Brown returned to her home, which was located about two miles from the scene of the offense. Upon arriving there, she told her mother what had occurred. The police were notified, and Ms. Brown was taken to the area where the incident occurred. She identified the house where she had been taken and later identified defendant at a police lineup. Defendant was arrested at his home at 5:30 a.m. A handgun, found in his bedroom, was seized.

The police officer, who interviewed Ms. Brown that morning, took a statement from her that defendant had accosted her at about 9:50 p.m. on June 10, 1976. However, the complainant's mother testified, over objection, that her daughter had returned at about 1:30 or 2:00 a.m. and that her daughter had told her that she had left defendant's house 30 or 45 minutes earlier. At the preliminary examination, Ms. Brown adopted the later time as the time of the offense.

At trial defendant called Barbara Waters, an employee of the City of Detroit Department of Transportation, as a witness. She testified that bus number 24 was the only bus operating from Northland that ended its run on the evening of June 10, 1976. This bus went out of service at 10:57 p.m. Defendant also called three witnesses, who testified they were with him from 8:30 or 9:00 p.m. until about 11:30 p.m. in the evening in question.

Defendant initially contends that the trial judge erred in denying defendant's request for the substitution of counsel.

On the day of the trial, defense counsel brought to the trial judge's attention the existence of a dispute between him and his client. Defendant desired counsel to call three alibi witnesses to testify and also complained that no evidentiary hearing had been held to determine the admissibility of the gun and some clothing seized at the time of his arrest. In response, defense counsel agreed to call the alibi witnesses and the trial judge held a pretrial hearing regarding the admissibility of the seized evidence. The judge also denied defendant's motion for the appointment of new counsel.

We find no error in the action taken by the trial judge. In order to be entitled to the appointment of a new counsel, defendant must show, among other things, a legitimate reason for asserting this right. People v Charles O Williams, 386 Mich. 565, 578; 194 N.W.2d 337 (1972). Since defendant's complaints as to counsel's representation were resolved before trial, defendant failed to meet his burden of establishing the need for the appointment of substitute counsel. See for example People v Bradley, 54 Mich. App. 89, 94-96; 220 N.W.2d 305 (1974).

Defendant next contends that the trial judge abused his discretion in admitting evidence of defendant's prior felony convictions.

The decision to admit evidence of prior convictions is left to the discretion of the trial judge. People v Jackson, 391 Mich. 323, 336; 217 N.W.2d 22 (1974). When called upon to exclude evidence of prior convictions, a trial judge must recognize his discretion on the record, People v Cherry, 393 Mich. 261; 224 N.W.2d 286 (1974), and should exercise his discretion with reference to three specific criteria, People v Crawford, 83 Mich. App. 35, 39; 268 N.W.2d 275 (1978). Error has been found where the trial judge places the burden on the defendant to justify exclusion, People v McCartney, 60 Mich. App. 620, 624; 231 N.W.2d 472 (1975), where the trial judge delegates the decision regarding admissibility to the parties, People v Dennis Johnson, 85 Mich. App. 181, 183-184; 270 N.W.2d 734 (1978), where the trial judge affirmatively indicates his belief that the defendant will be convicted if the prior convictions are put before the jury, People v Crawford, supra, and where the judge erroneously construes a factor to favor admission rather than exclusion, People v Baldwin, 405 Mich. 550; 275 N.W.2d 253 (1979).

In Crawford, the Court set out the criteria as follows:
"The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a `bad man' or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant's testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?)."

In the present case, the trial judge recognized his discretion in admitting the evidence of defendant's prior convictions and indicated this on the record. Although the trial judge did not discuss the three criteria on the record, we do not read the prior case law as requiring a finding regarding these factors. Indeed, had the Supreme Court desired to impose such a rule on trial judges, it could have easily done so in People v Baldwin, supra. In the absence of an affirmative misapplication of the three criteria, we are unwilling to presume that the trial judge failed to consider the relevant criteria in admitting the evidence. Since the trial judge recognized and exercised his discretion in admitting the evidence, no error occurred.

Defendant next claims that the trial judge erred in admitting, over objection, the testimony of complainant's mother concerning the complainant's account of the incident. He claims this evidence was inadmissible hearsay. We disagree. This testimony falls within the res gestae exception to the hearsay rule, as the statement was made within 45 minutes of the sexual assault, at a time when the victim was still under the strain of the incident. People v Spalding, 42 Mich. App. 492, 499-500; 202 N.W.2d 450 (1972), overruled on other grounds in People v Reed, 393 Mich. 342, 350-351; 224 N.W.2d 867 (1975). Furthermore, since the victim testified at trial, her mother's testimony concerning her prior account of the evidence was cumulative in nature and could not have prejudiced defendant. See People v Carson, 87 Mich. App. 163; 274 N.W.2d 3 (1978).

Defendant next contends that the trial judge erred in failing to instruct the jury on the issue of identification. The trial transcript indicates that the jury was instructed that they must determine beyond a reasonable doubt that defendant was the person who committed the charged offense. No request for further instructions on this subject was made by defense counsel. Under these circumstances, no error occurred. People v Manuel Johnson, 58 Mich. App. 347, 355-356; 227 N.W.2d 337 (1975).

Defendant next argues that the prosecutor's closing argument contained numerous prejudicial remarks. We conclude that no error occurred. No objection was made to these comments at trial. The prosecutor's repeated references to the details of the offense, although unnecessary, were limited to the facts and were made using the phraseology of the witnesses at trial. The remarks concerning the dubious credibility of the alibi witnesses offered by defendant was a fair inference drawn from their testimony, People v Caldwell, 78 Mich. App. 690, 692; 261 N.W.2d 1 (1977). Nor did the brief reference to the notion of "reasonable doubt" in any way usurp the court's role in instructing the jury. People v Adams, 48 Mich. App. 595, 603; 210 N.W.2d 888 (1973).

Defendant also alleges that the trial judge erred at sentencing by imposing a sentence merely on the basis of the nature of the offense and not on the basis of defendant's own unique characteristics. He further claims that he was punished for exercising his right to a trial. These arguments are totally without merit. The record indicates that the trial judge considered defendant's past record and imposed a sentence commensurate thereto. Since the sentence imposed falls within the statutory limits, we decline to disturb it. People v McLott, 70 Mich. App. 524, 527; 245 N.W.2d 814 (1976). Nor does the record in any way support defendant's claim that he was punished for exercising his right to a trial in this case.

Defendant's final contention is that he was denied the effective assistance of counsel at trial. He asserts 11 different errors or omissions he claimed were committted by defense counsel. Several of these, such as the content of the opening statement and the decision to eschew instructions on lesser-included offenses, relate to trial strategy and will not support a claim of ineffective assistance of counsel. People v Malchi White, 81 Mich. App. 226, 229; 265 N.W.2d 100 (1978). Our review of the other alleged deficiencies leads us to conclude that no violation of the standard set forth in People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), occurred.

Affirmed.

D.E. HOLBROOK, JR., J., concurred.

D.C. RILEY, J. (dissenting).

I write separately in order to express my disagreement with the majority's conclusion that a trial judge is not required to balance the factors enunciated in People v Jackson, 391 Mich. 323, 333; 217 N.W.2d 22 (1974), and People v Crawford, 83 Mich. App. 35, 39; 268 N.W.2d 275 (1978), on the record. Judicial consideration in an area of law which results in the promulgation of carefully demarcated guidelines should not be rendered nugatory by cursory reference to the discretionary nature of an activity required of trial judges, but should rather involve a legitimate attempt to gauge the prejudicial and probative impact of admitting felony convictions for impeachment purposes. As People v Crawford, supra, at 38 noted, the rule "envisions a true exercise of discretion by balancing the competing factors involved". While it is correct that no Michigan case has yet expressly required an on-the-record discussion of the Jackson-Crawford components, it seems rather anamolous, indeed, that trial judges should be admonished to consider and balance those elements as part of their decision-making process, and yet provide no method for ensuring by way of appellate review that those requirements are complied with. The rule as it stands effectively shields trial court impeachment determinations from review by a higher court. The present case serves as a sufficient example. Before empaneling the jury, defendant moved to suppress the admission of his prior felony convictions. The record offers the following dialogue:

"THE COURT: Are there any other matters?

"MR. ZACK [Defense Attorney]: Yes, I would move to suppress the prior record of the defendant in this matter.

"THE COURT: Now what is his prior record?

"MR. ZACK: His prior record — I don't have a copy of it. The prosecutor has.

"MR. BAHEN [Assistant Prosecuting Attorney]: The prior record indicates he was convicted of assault with intent to rape on January 11 of 1966. He has a sodomy charge — excuse me — a charge of sodomy. He was convicted of gross indecency in December 23rd, 1970. He has a receiving and concealing stolen property December 3rd, 1970. That's the extent of his record.

"We have one case pending which is not part of this record.

"THE COURT: The Court makes the following rulings:

"All misdemeanor convictions are hereby suppressed.

"As far as felony convictions, that's a discretionary matter with the Court. I'll permit the prosecuting attorney to show any felony convictions if the defendant takes the witness stand."

The trial judge's perfunctory disposition followed immediately after he was informed by the prosecution of defendant's previous record. Although the court recognized its power of discretion, the record is barren of any evidence that the Jackson-Crawford factors were considered (or any showing that the court was cognizant of them). Nor, as the passage of time between the trial judge's awareness of defendant's felony record and his decision to admit the convictions indicates, was there sufficient time to support even an inference that any balance of considerations occurred. Here, defendant had three previous felony convictions, all of which were at least six years old. Two were for sexual offenses, one occurring 11 years before the present trial. People v Jackson, supra, cautioned against the danger inherent in the admission of similar crimes for impeachment purposes, and indicated that the trial courts were to be guided in the exercise of their discretion by the criteria discussed in Gordon v United States, 127 US App DC 343; 383 F.2d 936 (1967), and Luck v United States, 121 US App DC 151; 348 F.2d 763 (1965). Gordon included the following excerpt:

"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that `if he did it before he probably did so this time.' As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity." 127 US App DC at 347. (Emphasis supplied.)

It should further be noted that defendant elected not to take the stand as a result of the court's decision. But again, no weight was given these considerations by the lower court.

In sum, if the Jackson-Crawford criteria are to exist as something more than an ineffectual assemblage of hollow directives, care should be taken, by means of an on-the-record deliberation, that their requirements are given full consideration. Inasmuch as defendant may have been precluded from testifying due to the court's faulty impeachment inquiry, as he made no inculpatory statements, nor was any physical evidence tying him to the offense produced, I cannot conclude that the error was harmless beyond a reasonable doubt. People v Robinson, 386 Mich. 551; 563; 194 N.W.2d 709 (1972), People v Sherman Hall, 77 Mich. App. 456, 461; 258 N.W.2d 517 (1977), lv den 402 Mich. 909 (1978), People v Heard, 58 Mich. App. 312, 316; 227 N.W.2d 331 (1975), lv den 400 Mich. 812 (1977). Defendant's conviction should be reversed.

To this may be added the rule that the people, not the defendant, must justify to the court the use of prior convictions for impeachment. People v Crawford, 83 Mich. App. 35, 38; 268 N.W.2d 275 (1978), People v McCartney, 60 Mich. App. 620; 231 N.W.2d 472 (1975). The transcript discloses nothing by way of prosecutorial argument in favor of their admission.

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PEOPLE v. ROBERSON
(May 21, 1979)