Opinion
Docket No. 18121.
Decided April 7, 1975.
Appeal from Oakland, Arthur E. Moore, J. Submitted Division 2 February 6, 1975, at Lansing. (Docket No. 18121.) Decided April 7, 1975.
Frank E. Deblauwe was convicted of larceny in a building. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Richard G. Bensinger, Assistant Appellate Counsel, for the people.
Faintuck, Shwedel, Roether, Wolfram McDonald, for defendant.
Before: BASHARA, P.J., and R.B. BURNS and M.J. KELLY, JJ.
The defendant was found guilty by a jury of larceny in a building. MCLA 750.360; MSA 28.592. He raises four issues on appeal; only one has merit.
The meritorious issue concerns a letter one of defendant's alleged accomplices wrote to the owner of the stolen property. The letter exculpated the defendant, but it also mentioned defendant's status as a parolee. Defense counsel sought to have the letter admitted into evidence and to have that portion which mentioned his parolee status excised before admission. The trial judge refused to allow it. Before that portion was to be read aloud to the jury on direct and cross-examination, the defense objected and requested to have it deleted. Each time the trial judge denied the requests.
The excerpt in question was irrelevant to the content of the message conveyed in the letter, and since the defendant did not testify in his own behalf, the excerpt could not properly be introduced to impugn the defendant's credibility. People v Sullivan, 32 Mich. App. 181; 188 N.W.2d 247 (1971), People v McCartney, 46 Mich. App. 691; 208 N.W.2d 547 (1973), People v Wallen, 47 Mich. App. 612; 209 N.W.2d 608 (1973), and People v Thomas Jones, 48 Mich. App. 470; 210 N.W.2d 497 (1973).
The prosecution contends that the defendant waived his right to object to the admission of the excerpt, which was otherwise objectionable, by seeking to have any part of the letter introduced into evidence. People v Crosby, 19 Mich. App. 135; 172 N.W.2d 506 (1969). We do not agree.
The prosecution, in this case, was entitled only to have such portions of the letter introduced into evidence as were relevant to what the defense attempted to prove. People v Bowen, 170 Mich. 129, 133-137; 135 N.W. 824, 826-827 (1912), Socony Vacuum Oil Co v Marvin, 313 Mich. 528, 539; 21 N.W.2d 841, 845 (1946), 7 Wigmore, Evidence (3rd ed), § 2113 and § 2116, pp 523-528 and p 533, and McCormick, Evidence (2d ed), § 56, pp 130-131. The fact that defendant was a parolee is irrelevant to his guilt or innocence of the charges against him or to the content of the remainder of the letter. The sole theory that could conceivably make this fact relevant would be that the knowledge of defendant's vulnerability acted as an inducement to his accomplice to lie about defendant's involvement. We believe this theory is far too tenuous to justify admitting such potently prejudicial material into evidence as a countermeasure. This is especially the case here since the prosecution could have presented the same basic impeachment theory to the jury without mentioning defendant's parolee status.
Decisions with respect to the relevancy of proffered evidence are within the discretion of the trial court; however such decisions will be overturned where an abuse is shown. People v Harrell, 54 Mich. App. 554; 221 N.W.2d 411 (1974). We believe that the trial judge abused his discretion when he denied defense counsel's motion to delete that portion of the letter that referred to defendant's status as a parolee. The trial judge's decision allowed evidence of defendant's prior criminal record to be improperly brought before the jury. Such an error is beyond instructional cure. Sullivan, supra, Wallen, supra, McCartney, supra, and Jones, supra.
Reversed and remanded for a new trial.