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In People v Farrar, 36 Mich. App. 294, 300-306; 193 N.W.2d 363 (1971), a panel of the Court of Appeals adopted the Luck construction, and held it was error for a trial judge to fail to recognize that he may, in the exercise of discretion, refuse to allow reference to a defendant's prior conviction record.
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Docket No. 10532.
Decided October 1, 1971.
Appeal from Oakland, Philip Pratt, J. Submitted Division 2 June 8, 1971, at Detroit. (Docket No. 10532.) Decided October 1, 1971.
Robert C. Farrar was convicted of the felonious assault of a police officer. Defendant appeals. Reversed and remanded for a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Frank R. Knox, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow, State Appellate Defender, and Martin Reisig, Assistant Defender, for defendant on appeal.
Before: LEVIN, P.J., and QUINN and V.J. BRENNAN, JJ.
The defendant, Robert C. Farrar, was convicted by a jury of felonious assault of a police officer.
MCLA § 750.82 (Stat Ann 1962 Rev § 28.277).
The questions presented on this appeal concern statements made by the prosecutor during the trial and in his closing argument and the prosecutor's reference to the defendant's criminal record in cross-examining him. We reverse and remand for a new trial.
The defendant shot his brother, Henry, in the leg at about three in the morning on March 22, 1970. The shooting was reported to the police by the landlord of the house in which Henry lived. Upon arriving at the scene, police officers observed the defendant with a gun in his hand.
At the trial, the officers testified that defendant pointed the gun at the chest of one of them for about five seconds before finally dropping it to the ground. The landlady testified that the defendant backed out of a door of the house, that he did not point the gun at the officers, and that he dropped it and raised his hands immediately upon being told to do so. The defendant related substantially the same version of the facts.
I.
The prosecutor made the following statement during his closing argument:
"Every day they're [policemen] called pigs and people assault them with their fists and words. You know, they don't bring these things in. Those people are never charged with offenses. They don't bring these things into court unless they really happened. The point is the reason why they're here is this actually happened as the officers testified that it happened."
In People v. Humphreys (1970), 24 Mich. App. 411, 418, we reversed a defendant's conviction because we concluded that the prejudice created by the prosecutor's improper argument could not have been cured by instructions even if the defendant's lawyer had timely objected. The argument in that case was similar to the argument in the present case; there the prosecutor argued:
"I can assure you this: That if the defendant in the opinion of the police and in my opinion were innocent of this charge, we would not be here right now."
In Humphreys, we stressed that there was a close question of fact turning on the credibility of the witnesses. So too in this case the jury's decision on the disputed factual issue of whether the defendant pointed the gun at one of the officers before dropping it to the ground depended on its appraisal of the witnesses.
A new trial is required even though the defendant's trial lawyer failed to make proper objection. The presumption of innocence protects the defendant in a criminal case with equal force whether the witnesses against him are police officers or ordinary citizens. The prosecutor may not subtly convert the presumption of innocence into a presumption of guilt by appealing to the jurors to perform a civic duty to support the police:
Other cases ordering new trials because of improper prosecutorial argument even though the issue had not been properly preserved at the trial level include People v. Ignofo (1946), 315 Mich. 626, 641; People v. Slater (1970), 21 Mich. App. 561; People v. Montevecchio (1971), 32 Mich. App. 163. Similarly, see the civil cases of Sauve v. Carling Brewing Company, Inc. (1965), 374 Mich. 487 and Morrison v. Skeels (1969), 16 Mich. App. 727, 736. See, generally, People v. Shirk (1970), 383 Mich. 180, 194; People v. Degraffenreid (1969), 19 Mich. App. 702, 715.
"The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict."
ABA Project on Standards for Criminal Justice, The Prosecution Function, Std. 5.8(d); cf. In re Widening of Woodward Avenue (1941), 297 Mich. 235, 246.
Both the Supreme Court of Michigan and our Court have repeatedly stressed that the prosecutor may not express a personal belief in the guilt of the defendant. It is the prosecutor's duty, as well as the court's to see to it that the defendant receives a fair trial:
See People v. Quick (1885), 58 Mich. 321, 324; People v. Dane (1886), 59 Mich. 550, 553; People v. McGuire (1891), 89 Mich. 64; People v. Boske (1922), 221 Mich. 129, 134, 135; People v. Hill (1932), 258 Mich. 79, 88; People v. Ignofo (1946), 315 Mich. 626, 636; People v. Slater (1970), 21 Mich. App. 561; People v. Montevecchio (1971), 32 Mich. App. 163. Similarly, see ABA Project Standards for Criminal Justice, The Prosecution Function, Std. 5.8(b).
"The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict."
ABA Code of Professional Responsibility, EC 7-13. Similarly, see Berger v. United States (1935), 295 U.S. 78, 88 ( 55 S Ct 629, 633; 79 L Ed 1314, 1321); ABA Project on Standards for Criminal Justice, The Prosecution Function, Std. 1.1(c); Wellar v. People (1874), 30 Mich. 16, 23; People v. Quick, supra fn 4; People v. Dane, supra fn 4; People v. Carr (1887), 64 Mich. 702, 708; People v. Evans (1888), 72 Mich. 367, 383; People v. Kirby (1966), 4 Mich. App. 201, 204; People v. Brocato (1969), 17 Mich. App. 277, 304.
Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts. Our frequent strictures against this kind of argument mean little unless we are prepared to reverse and require a new trial. A prosecutor who crosses a clearly defined line, and a trial judge who makes no effort to stop him, have only themselves, not the appellate courts, to blame if a judgment of conviction is reversed and the case must be retried because of improper argument.
See People v. Aikin (1887), 66 Mich. 460, 480; People v. Plautz (1970), 28 Mich. App. 621, 623, stressing the court's duty to "check and control" unwarranted intemperance of zeal or language on the part of a prosecutor. In People v. Brocato (1969), 17 Mich. App. 277, 305, we said: "He [the judge] must not hesitate to keep the conduct of the attorneys within the boundaries of legitimate argument and to promptly check them when they exceed it". Similarly, see People v. Carr (1887), 64 Mich. 702, 708; People v. Camel (1968), 11 Mich. App. 219, 222.
II.
In cross-examining the defendant, the prosecutor asked him if he had been arrested and convicted of attempted murder. Subsequent questioning brought out that some years before the incident which gave rise to the instant prosecution, the defendant had been charged with attempted murder, and had pled guilty to the reduced charge of aggravated assault.
The questions were improper. A defendant's credibility may not be impeached by reference to a prior charge of which he was not convicted. A prosecutor may not by innuendo inject evidence otherwise inadmissible.
People v. Brocato (1969), 17 Mich. App. 277, 301-303.
People v. DiPaolo (1962), 366 Mich. 394, 396, 397; People v. Jones (1940), 293 Mich. 409, 413; People v. Jones (1971), 32 Mich. App. 309, 314; People v. Ball (1971), 33 Mich. App. 288, 290.
III.
We address ourselves to additional assignments of error concerning questions likely to arise again upon the retrial.
The defendant contends that the judge erred when he failed to recognize that he may in the exercise of discretion refuse to allow any questioning of a defendant concerning his previous criminal record.
The relevant statutes provide:
"No person shall be disqualified as a witness in any civil or criminal case or proceeding by reason of his interest in the event of the same as a party or otherwise or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility. A defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect." MCLA § 600.2159 (Stat Ann 1962 Rev § 27A.2159); originally enacted as PA 1881, No 245; words "civil or" added by PA 1915, No 314, C 17, § 64 (emphasis supplied).
"No person shall be excluded from giving evidence on any matter, civil or criminal, by reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided." MCLA § 600.2158 (Stat Ann 1962 Rev § 27A.2158); originally enacted as PA 1861, No 125; see fn 21 and accompanying text (emphasis supplied).
In Luck v. United States (1965), 121 App DC 151, 156 ( 348 F.2d 763, 768), the United States Court of Appeals for the District of Columbia Circuit, in a two-to-one decision, held, under a statute reading fundamentally as does Michigan's, that a trial judge may, in the exercise of discretion, exclude evidence of prior crimes. In so holding the Court emphasized that the statute:
"says, in effect that the conviction `may', as opposed to `shall', be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field." (Emphasis by the Court.)
In subsequent decisions the District of Columbia Circuit fully adopted the Luck construction of the statute. In Gordon v. United States (1967), 127 App DC 343 ( 383 F.2d 936), guidelines were suggested for the exercise of this trial judge discretion in an opinion written by Chief Justice (then Judge) Burger: Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions.
An extensive jurisprudence has been developed by the United States Court of Appeals for the District of Columbia Circuit regarding the Luck-Gordon rule. In Jones v. United States (1968), 131 App DC 88 ( 402 F.2d 639), and Barber v. United States (1968), 129 App DC 193 ( 392 F.2d 517), the trial judge was found to have abused his discretion in admitting evidence of the defendant's prior conviction record. No abuse of discretion was found in Evans v. United States (1968), 130 App DC 114 ( 397 F.2d 675). Compare Brown v. United States (1966), 125 App DC 220 ( 370 F.2d 242); Covington v. United States (1966), 125 App DC 224 ( 370 F.2d 246); Hood v. United States (1966), 125 App DC 16 ( 365 F.2d 949); Lewis v. United States (1967), 127 App DC 115 ( 381 F.2d 894); Williams v. United States (1968), 129 App DC 332 ( 394 F.2d 957).
In the few years since they were decided, Luck and Gordon have prompted a number of courts to take a new look at their statutes. The Supreme Courts of New Jersey and Massachusetts announced their adherence to the traditional view that the prosecutor has the right to have prior conviction evidence introduced. The Court of Criminal Appeals of Texas stated that its rule "lies between the practice common in such states as New Jersey and the Luck doctrine". The Supreme Court of Minnesota noted the "recent trend" of leaving the question to the trial court to decide but ruled that it was for the legislature to make any change; the dissenter declared that when a majority of the court agrees that a statutory rule is manifestly prejudicial to the rights of an accused it should be set aside because the legislature is not empowered to enact rules of evidence which deprive a defendant of a fair trial.
State v. Hawthorne (1967), 49 N.J. 130 ( 228 A.2d 682).
Commonwealth v. West (1970), ___ Mass. ___ ( 258 N.E.2d 22).
Bustillos v. State (Tex Crim App, 1971), 464 S.W.2d 118, 124.
State v. West (1969), 285 Minn. 188 ( 173 N.W.2d 468). The Michigan Supreme Court has asserted its paramount power over practice and procedure, including statutory rules of evidence. See Perin v. Peuler (On Rehearing, 1964), 373 Mich. 531, 540-542.
The United States Courts of Appeals have, on the whole, adopted the leadership of the District of Columbia Circuit and recognized that the question rests in trial judge discretion. The Supreme Courts of Connecticut, Alaska, Kentucky, and Illinois have also adopted that view. Mr. Justice Schaefer, speaking for a unanimous Illinois Supreme Court, recently declared:
See United States v. Johnson (CA1, 1969), 412 F.2d 753, 756; United States v. Palumbo (CA2, 1968), 401 F.2d 270, 273; United States v. Greenberg (CA3, 1969), 419 F.2d 808, 809; United States v. Hildreth (CA4, 1967), 387 F.2d 328, 329; United States v. Vigo (CA5, 1970), 435 F.2d 1347; United States v. Allison (CA9, 1969), 414 F.2d 407, 411; United States v. Bartello (CA10, 1970), 432 F.2d 1030, 1033. Contra: United States v. Escobedo (CA7, 1970), 430 F.2d 14, 18-20 ; United States v. Scarpellino (CA8, 1970), 431 F.2d 475, 478-479. Both of the contra decisions were by divided courts. The dissenter in the Seventh Circuit relied on an earlier decision of his Court which followed the Luck-Gordon rule; the majority's decision is weakened by its heavy reliance on the preliminary draft of Proposed Rules of Evidence for the United States District Courts which, as later revised and now proposed (Revision of March, 1971), adopts the Luck-Gordon rule; see 51 FRD 315, 391, and People v. Montgomery (1971), 47 Ill.2d 510 ( 268 N.E.2d 695), for the text of the revised draft.
State v. Marquez (1970), 160 Conn. 47 ( 273 A.2d 689).
Spaulding v. State (Alaska, 1971), 481 P.2d 389. This unanimous opinion apparently supersedes Parish v. State (Alaska, 1970), 477 P.2d 1005, where a majority comprised of three Justices expressed a disinclination to modify prior practice over the dissent of one justice and the concurrence without opinion of another.
Bogie v. Commonwealth (Ky, 1971), 467 S.W.2d 767.
People v. Montgomery (1971), 47 Ill.2d 510 ( 268 N.E.2d 695).
The Supreme Judicial Court of Maine has indicated that it is ready to adopt this view when the question is squarely presented. See State v. Toppi (Maine, 1971), 275 A.2d 805, 810. See also State v. Ross (1971), ___ Ariz. ___ ( 485 P.2d 810, 811).
"The question is inherently judicial, and we believe that view is correct which places the discretion as to the admissibility of this kind of evidence in the judge rather than in the prosecutor." People v. Montgomery (1971), 47 Ill.2d 510, 513 ( 268 N.E.2d 695, 698).
Commentators generally are critical of the rule allowing evidence of prior conviction record to be admitted to impeach a defendant when he takes the stand as a witness.
Professor McCormick in his work on Evidence, § 43, points out that the present rule is an historical accident. See also, Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale LJ 763, 774-778 (1961); Note, Constitutional Problems Inherent in the Admissibility of Prior Record Conviction Evidence for the Purpose of Impeaching the Credibility of the Defendant Witness, 37 Cinci L Rev 168 (1968).
Both the Uniform Rules of Evidence Act (Rule 21; 9A ULA, 607) and the Model Code of Evidence (Rule 106), would eliminate the use of such evidence against a defendant in a criminal case unless he first introduces evidence admissible solely for the purpose of supporting his credibility and then would limit such evidence to convictions of a crime involving "dishonesty or false statement".
It has been suggested that the present rule unconstitutionally chills a defendant's right to take the stand in his own defense and that it "effects an anomalous distinction between defendants with and those without a criminal record in the exercise of the right to testify in their own behalf". See Note, 70 Yale LJ 763, 776 (1961); Note, 37 Cinci L Rev 168 (1968).
A defendant in a criminal case has a constitutional right to take the stand in his own behalf. Cf. In re Oliver (1948), 33 U.S. 257, 273 ( 68 S Ct 499, 507; 92 L Ed 682, 694); MacKenna v. Ellis (CA5, 1960), 280 F.2d 592, 595; Ferguson v. Georgia (1961), 365 U.S. 570 ( 81 S Ct 756, 5 L Ed 2d 783). Cases holding unconstitutional rules that needlessly penalize assertion of constitutional rights include United States v. Jackson (1968), 390 U.S. 570, 583 ( 88 S Ct 1209, 1217; 20 L Ed 2d 138, 147); Simmons v. United States (1968), 390 U.S. 377, 394 ( 88 S Ct 967, 976; 19 L Ed 2d 1247, 1259); Groshart v. United States (CA9, 1968), 392 F.2d 172, 180; People v. Luna (1967), 37 Ill.2d 299, 308 ( 226 N.E.2d 586, 590); Griffin v. California (1965), 380 U.S. 609, 614 ( 85 S Ct 1229, 1232, 1233; 14 L Ed 2d 106, 109, 110).
In the first statement by our Supreme Court after the common-law disability of a defendant in a criminal case to testify in his own behalf was legislatively removed, the Court declared it "was quite within the discretionary authority of the trial judge" (emphasis supplied) to permit a defendant who had elected to testify to be cross-examined as to his prior conviction record. People v. Cummins (1882), 47 Mich. 334, 336.
The common-law disabilities were removed for defendants in criminal cases by PA 1881, No 245; as to the former state of the law see People v. Thomas (1861), 9 Mich. 314 commenting on PA 1861, No 125. See opening paragraphs of part III for texts of the 1861 and 1881 acts.
There are, of course, numerous statements in our later cases concerning the prosecutor's "right" to introduce prior conviction evidence. Those statements were not made in the context of a challenge based on Luck and its reading of the statute; cf. Bissell v. Starr (1875), 32 Mich. 297, 299; People v. Wimberly (1970), 384 Mich. 62, 69. The rule is well settled that a point "assumed without consideration is of course not decided". Allen v. Duffie (1880), 43 Mich. 1, 11.
Taylor v. Walter (1970), 384 Mich. 114, (on rehearing, 1971), 385 Mich. 599, and Sting v. Davis (1971), 384 Mich. 608, concern the construction of GCR 1963, 607. This rule, first promulgated in 1965 because of the court's concern regarding proof in negligent entrustment actions, by its terms applies only to the trial of civil actions and overrules a rule of evidence established in the motor vehicle code. Rule 607 does not apply to the special problem of defendants in criminal cases dealt with in PA 1881, No 245; see comments of Mr. Justice BRENNAN ( 384 Mich at p 615). See People v. Simard (1946), 314 Mich. 624, 630, 631.
In People v. Eldridge (1969), 17 Mich. App. 306, our Court, citing Luck, reversed a defendant's conviction of statutory rape for, among other reasons, the prosecutor's questioning of an alleged res gestae witness regarding his conviction of taking indecent liberties with the girl who complained against the defendant Eldridge.
We are convinced that the Luck construction of the statute is the correct one. Accordingly, on remand the trial judge shall exercise his discretion if again requested to exclude any reference to the defendant's prior conviction record.
IV.
The defendant also assigns as error the prosecutor's reference to the shooting of the defendant's brother inside the house shortly before the police officers were called.
While the prosecutor may not ordinarily introduce evidence of crimes other than the one the defendant is charged with committing, when the other crime occurs shortly before or after the charged offense it may be provable unless the probative value of the proffered evidence is overcome by the danger that introduction of the evidence will confuse, mislead or prejudice the jury.
See People v. Lincourt (1923), 221 Mich. 674; People v. Savage (1923), 225 Mich. 84; People v. Andriacci (1968), 11 Mich. App. 482, 486; People v. Nichols (1971), 33 Mich. App. 63.
A review of the record indicates that the closeness in time between the two incidents made it almost impossible to conduct the trial without some reference to the earlier incident. The people were entitled to show, generally, without undue emphasis or detail, how the defendant came to be armed and why the police were called to the scene, that there had been an altercation between the defendant and a member of his family, and that the defendant had obtained a gun and the police were called. We can see no prejudice to the defendant in the introduction of such testimony as it must be apparent to the jury from the fact that several squad cars were called to the scene that something untoward had occurred.
For the errors mentioned, we reverse and remand for a new trial.
All concurred.