
131 Mich. App. 76 (1983)
345 N.W.2d 904
PEOPLE
v.
OWENS
Docket Nos. 65896, 65897.
Michigan Court of Appeals.
Decided November 1, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Judith H. Hughes, Prosecuting Attorney, and Michael A. Nickerson, Assistant Attorney General, for the people.
David H. Tripp, for defendant on appeal.
Before: D.F. WALSH, P.J., and R.M. MAHER and T. ROUMELL,[*] JJ.
PER CURIAM.
Defendant appeals as of right from his convictions after a jury trial of two counts of incitement of first-degree murder, MCL 750.157b; *81 MSA 28.354(2), and two counts of conspiracy to commit first-degree murder, MCL 750.157a; MSA 28.354(1), and his plea-based revocation of probation for violation of conditions, MCL 771.4; MSA 28.1134. Defendant was sentenced on May 14, 1982, to the mandatory term of life imprisonment without parole as to each count of incitement to murder and conspiracy to murder.
On September 22, 1981, Detective John Fiedler, posing as a "hit man", met with the defendant in the parking lot of a restaurant located in Barry County. The defendant indicated to Fiedler that he wanted Douglas O'Laughlin and Paul DeLassus, his former business partners, killed. The two men met on several other occasions. They agreed that Fiedler would receive $1,000 for each killing, one-half to be paid before the killings and one-half afterwards. However, no money ever changed hands. On October 21, 1981, the two men met for the last time. Defendant introduced Fiedler to Ricky Leon Jones, another of defendant's business partners. At that meeting, Jones told Fiedler that he too wanted O'Laughlin and DeLassus killed. Later that day, defendant and Jones were arrested.
On appeal, defendant raises eleven claims of error, six of which require discussion.
First, the defendant contends that the trial court erred in admitting evidence of his prior convictions for impeachment purposes. Prior to trial, the prosecutor moved for admission of evidence of defendant's earlier convictions for impeachment purposes. The trial court agreed to admit evidence of four convictions.
Evidence of a defendant's prior convictions may be admitted for impeachment purposes in accordance with MRE 609. The trial judge has discretion *82 regarding their admission, and is required to recognize and exercise that discretion on the record. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).
The factors the court must consider in deciding whether to admit evidence of prior convictions are:
"(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 [there is] 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?)." People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).
Under MRE 609, as amended, the reasons for the trial judge's decision must be articulated on the record.
In the instant case, the trial judge did not discuss the third Crawford factor. The trial judge, however, could not consider the effect on the decisional process if defendant chose not to testify. The defendant did not inform the judge that he would not be taking the stand until well after the ruling was already made and never informed the judge what the nature of his testimony would be should he take the stand. In order to preserve the issue of the trial court's failure to properly consider this factor, defendant was required to establish that he *83 would take the stand if evidence of the convictions were not admitted and to outline the nature of his proposed testimony. People v Casey, 120 Mich App 690, 695-697; 327 NW2d 337 (1982).
Defendant also argues that the prosecution failed to carry its burden of proving the need for the admission of this evidence. There is a split of authority in this Court as to whether the prosecution has the burden of proving that evidence of prior convictions is admissible. Compare People v Gary Johnson, 105 Mich App 332, 338; 306 NW2d 501 (1981), and People v Crawford, supra (burden on the prosecution to justify admission) with People v Steele, 115 Mich App 758; 321 NW2d 804 (1982), and People v Huff, 101 Mich App 232, 250-251; 300 NW2d 525 (1980), rev'd 411 Mich 974; 308 NW2d 110 (1981) (burden on the defendant to justify exclusion). We believe that the burden is on the prosecution to justify the admission of evidence of prior convictions. In the instant case, the prosecutor made no effort to justify admission of evidence of defendant's prior convictions. She simply listed the convictions and left to the trial judge the decision of whether to admit evidence of those convictions. Therefore, we reverse defendant's convictions and order a new trial.
Second, defendant argues that the trial judge erred in refusing to instruct the jury regarding the lesser included offenses of incitement to commit and conspiracy to commit second-degree murder and manslaughter.
In every murder prosecution the jury must be instructed with regard to second-degree murder as well as first degree. People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). Instructions upon the elements of both first- and second-degree murder are required in prosecutions for incitement to *84 murder as well. People v Richendollar, 85 Mich App 74, 78-81; 270 NW2d 530 (1978), lv den 405 Mich 820 (1979). Therefore, the trial court erred in failing to instruct the jury on incitement to commit second-degree murder. The Richendollar analysis does not, however, require that instructions regarding manslaughter also be given, as defendant argues.
Defendant also argues that the same rule should be applied in cases of conspiracy to murder. This Court appears to be divided upon this question. Compare People v Hence, 110 Mich App 154, 170-171; 312 NW2d 191 (1981), with People v Perry, 115 Mich App 533, 536; 321 NW2d 719 (1982), and People v Jackson, 114 Mich App 649, 664-668; 319 NW2d 613 (1982). We believe that the reasoning of Richendollar regarding incitement to murder is equally applicable in cases of conspiracy to murder. Thus, the trial court erred in failing to instruct the jury on conspiracy to commit second-degree murder.
Because of the above errors, the defendant's convictions for incitement to commit and conspiracy to commit first-degree murder must be reversed.[1]
Third, defendant argues that the jury should have been instructed that incitement to commit first-degree murder is a specific intent crime.
A person may be convicted of incitement to commit first-degree murder, MCL 750.157b; MSA 28.354(2), when he has engaged in conduct calculated to cause another person to commit first-degree murder. See People v Chapman, 80 Mich App 583, 586; 264 NW2d 69 (1978). The defendant must have intended that the crime which he urged *85 would in fact be committed. People v Shafou, 416 Mich 113, 122; 330 NW2d 647 (1982) (opinion of FITZGERALD, C.J.). The trial judge has the duty to instruct the jury regarding all the elements of the crime and any material defenses or theories. People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975), cert den 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975). In the instant case defendant requested that the jury be instructed that incitement to commit first-degree murder was a specific intent crime. Specific intent may be defined as "the subjective desire or knowledge that the prohibited result will occur". People v American Medical Centers of Michigan, Ltd, 118 Mich App 135, 153; 324 NW2d 782 (1982). Before a defendant may be convicted of incitement to commit first-degree murder, the jury must find that he intended that the incited crime would actually be committed. This is a specific intent. The jury, therefore, should have been instructed that incitement to commit first-degree murder was a specific intent crime. Defendant's convictions of incitement to commit first-degree murder should be reversed upon this ground as well.
Fourth, defendant argues that the trial court erred in denying his motion for directed verdict. He asserts that insufficient evidence of imminence of action and actual incitement was presented at trial to support his convictions for incitement to commit first-degree murder.
MCL 750.157b; MSA 28.354(2) provides that anyone "who incites, induces or exhorts any other person * * * to kill * * * or do any act * * * that may endanger or be likely to endanger the life of any person * * * shall be punished in the same manner as if he had committed the offense incited, induced or exhorted". This statute was enacted *86 shortly after Detroit's 1967 riots, and expressed the Legislature's concern regarding "riot-like behavior". People v Plyler, 104 Mich App 437, 445; 304 NW2d 859 (1981).
In Brandenburg v Ohio, 395 US 444, 447; 89 S Ct 1827; 23 L Ed 2d 430 (1969), the United States Supreme Court held that:
"[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
This Court held in People v Chapman, supra, 80 Mich App 587-588, that MCL 750.157b; MSA 28.354(2) is consistent with Brandenburg. The statute is intended to prohibit only a call to immediate action "urging the immediate commission of a dangerous felony or misdemeanor". 80 Mich App 588.
Under these standards the trial judge erred in denying defendant's motion for directed verdict. The prosecution did not present sufficient evidence that the defendant urged imminent action to justify a trier of fact in reasonably concluding that defendant was guilty beyond a reasonable doubt of incitement of first-degree murder. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). The defendant did not urge Fiedler to commit the murders immediately. In fact, he agreed that Fiedler would not perform the killings until Fiedler was paid one-half of his fee, and defendant never paid Fiedler that money. In addition, defendant gave Fiedler neither the schedules nor photographs of the intended victims. We conclude *87 that the evidence was not sufficient to withstand defendant's motion for directed verdict.
Fifth, defendant argues that there was insufficient evidence of real incitement on the part of the "hit man". He asserts that the proposed killer's actual intent to carry out the murder is an element of the crime of incitement.
In a recent decision, the Supreme Court attempted, with little success, to answer the question whether the statute requires proof of an overt act and that the third party was in fact incited. People v Shafou, supra, 416 Mich 113. The equally divided Court affirmed this Court's unpublished per curiam opinion in which it was held that an overt act was an element of the crime. Chief Justice FITZGERALD found, in an opinion joined by Justices WILLIAMS and COLEMAN, that only an overt act by the defendant himself was required for an incitement conviction. 416 Mich 121. No proof of any acts or intent to commit a crime on the part of the incited individual was necessary. 416 Mich 122. He also found that a charge of attempted incitement would lack "the required element of imminence to be constitutionally permissible". 416 Mich 123. Justice LEVIN, in an opinion joined by Justice RYAN, held that MCL 750.157b; MSA 28.354(2) was a "special kind of accomplice statute". 416 Mich 132. He would require that the incited offense actually have been committed before liability could be imposed. 416 Mich 126. Justice KAVANAGH would find that there must be some proof of actual incitement before a conviction would be proper under the statute. 416 Mich 147-148.
In the instant case, there was of course no evidence of actual incitement. Fiedler never had any intention of carrying out the proposed murders. However, in view of the confused state of the *88 law in this area and the fact that other grounds for reversal exist, we do not decide the question whether defendant's motion for directed verdict and to quash the information should have been granted because of the absence of such evidence.
Finally, defendant maintains that his revocation of probation must be reversed. Where revocation of probation is sought based on a violation of the criminal law, there must be sufficient proof for a finding by the preponderance of the evidence that the defendant committed the offense. People v Tebedo, 107 Mich App 316, 320-321; 309 NW2d 250 (1981). Probation may be revoked before the trial on the offense, and the revocation may be valid even if the defendant is acquitted of the crime. 107 Mich App 321. Where defendant is convicted, but his conviction is reversed on appeal, the probation revocation need not be reversed if
"(1) at the revocation hearing defendant admitted facts sufficient to establish by a preponderance of the evidence that he committed the offense, or (2) if testimony is presented at the revocation hearing which meets this same standard". 107 Mich App 322.
In the instant case defendant admitted only that he had been convicted of the offenses. No other testimony was presented. Since his convictions are to be reversed, defendant's probation revocation must be reversed as well.
The other issues raised by defendant are without merit.
Reversed and remanded for proceedings consistent with this opinion.
D.F. WALSH, P.J. (dissenting).
Respectfully, I dissent.
The majority first finds that each of defendant's *89 convictions must be reversed because the prosecuting attorney "simply listed [defendant's prior] convictions and left the decision whether to admit them to the trial judge".
I agree with the majority that the prosecution has the burden of proving that evidence of prior convictions is admissible. It is the function of the reviewing court, however, to examine not how vigorously the prosecuting attorney sought admission of the evidence, but rather whether the trial court abused its discretion in admitting the evidence. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).
In my judgment, there was no abuse of discretion in the trial court's ruling in this case. Clearly recognizing the discretionary nature of the issue, the court ruled that evidence of only four of defendant's eleven prior convictions was admissible: a 1971 burglary conviction, a 1973 grand larceny conviction, a 1976 falsification conviction, and a 1980 nonsufficient funds check conviction. Those convictions are not similar to the crimes with which defendant was charged, and each bears significantly on credibility. See People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). I find no reversible error in admission of this evidence.
Second, the majority finds error in the trial court's refusal to instruct the jury on incitement to commit second-degree murder and conspiracy to commit second-degree murder.
I agree with the majority that the trial court should have granted defendant's request for a jury instruction on incitement to commit second-degree murder, since I am persuaded that that offense is necessarily included in the offense of incitement to commit first-degree murder. People v Richendollar, 85 Mich App 74; 270 NW2d 530 (1978), lv den 405 *90 Mich 820 (1979). See People v Adams, 416 Mich 53; 330 NW2d 634 (1982). I, therefore, would reverse defendant's incitement convictions and would remand for entry of judgments of conviction of incitement to commit second-degree murder and for resentencing on those convictions.[1]
I find no error, however, in the court's refusal to instruct on conspiracy to commit second-degree murder. I am persuaded that there is no crime of conspiracy to commit second-degree murder. People v Hamp, 110 Mich App 92; 312 NW2d 175 (1981); People v Jackson, 114 Mich App 649; 319 NW2d 613 (1982), lv gtd 417 Mich 885 (1983); People v Perry, 115 Mich App 533; 321 NW2d 719 (1982), remanded on other grounds 417 Mich 908; 330 NW2d 852 (1983).
The majority next finds reversible error in the trial court's failure to instruct the jury that incitement to commit first-degree murder is a specific intent crime.
I agree with the majority that incitement to commit first-degree murder is a "specific intent" crime in that the accused must have intended that the crime urged be in fact committed. People v Shafou, 416 Mich 113, 122; 330 NW2d 647 (1982) (opinion of FITZGERALD, J.).
In this case, however, the jury was instructed that the prosecution was required to prove that defendant intended by his urging to bring about the commission of the crime urged. CJI 10:2:01(5). In my judgment, the jury was thus correctly advised of the intent element of the offense of incitement.
*91 Fourth, the majority holds that the trial court erred in denying defendant's motion for directed verdict on the incitement charges since there was not sufficient evidence "that the defendant urged imminent action". Again, I disagree.
In my judgment, there was sufficient evidence that defendant incited, induced, or exhorted another to commit a crime; the constitutionally required "imminence of action" was, therefore, proved. People v Chapman, 80 Mich App 583, 588; 264 NW2d 69 (1978). Defendant's conduct cannot be fairly characterized as mere abstract advocacy of lawlessness. See Brandenburg v Ohio, 395 US 444; 89 S Ct 1827; 23 L Ed 2d 430 (1969).
The majority does not resolve the issue of whether evidence of the "hit man's" actual intent to carry out the urged crimes was required to support defendant's convictions of incitement. In my judgment, such evidence is not required. People v Shafou, 416 Mich 113, 122; 330 NW2d 647 (1982) (opinion of Justice FITZGERALD); People v Dennis, 128 Mich App 235; 340 NW2d 81 (1983).[2]
And finally, based on my resolution of the foregoing issues, I vote to affirm revocation of defendant's probation.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.
[1]  These errors, however, do not alone require us to award the defendant a new trial. See People v Richendollar, supra, pp 80-81.
[1]  I note that the Supreme Court has granted leave to appeal in People v Snyder, 417 Mich 1039 (1983), to consider whether the Legislature intended the crime of incitement to commit first-degree murder to be punishable by mandatory life imprisonment and, if so, if such punishment constitutes cruel and unusual punishment or a denial of equal protection of the laws.
[2]  See People v Rehkopf, 417 Mich 1040 (1983), where the Supreme Court has granted leave to appeal, limited to the issue of whether the inciting must have occurred under circumstances that would be likely to produce the result incited.
