Docket No. 3,622.
Decided May 29, 1968.
Appeal from Wayne, Dingeman (Harry J., Jr.), J. Submitted Division 1 March 4, 1968, at Detroit. (Docket No. 3,622.) Decided May 29, 1968.
Robert Alex Coates was convicted of breaking and entering an occupied dwelling. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Barbara K. Hackett, Assistant Prosecuting Attorney, for the people.
Steven E. Goodman (now deceased) and Robert H. Golden, for defendant on appeal.
Two police officers saw 2 men taking a console television set out the front door of the house of the complainant in Grosse Pointe Woods about 8 p.m., April 2, 1966. The officers were standing about 20 yards from the men. One officer shined his flashlight on the 2 men. The men ran back into the house. The officers arrested Bernard Vinson immediately, the other man fleeing over a fence at the back of the premises. Other officers began investigating the backyards of homes on the next street and one officer found defendant Coates hiding under some bushes. The 2 officers who first observed the incident both testified at the trial that they clearly identified defendant Coates as being 1 of the 2 men carrying the television set. The people called Vinson, who had already been convicted of breaking and entering, and he testified that defendant Coates had gotten out of Vinson's car before the event and that Vinson had done the act himself without the assistance of defendant. He also testified that he had known Coates for 4 1/2 to 5 years. Another police officer testified that he had seen Vinson and Coates together on other occasions. Defendant was convicted by a jury of breaking and entering an occupied dwelling.
CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305).
Defendant charges that the trial court erred in permitting testimony by a police officer regarding his observation of defendant and Vinson together on occasions prior to the crime as identification of defendant. The prosecution, defendant contends, has attempted to establish the identification of defendant through association with another person who admitted guilt in the crime. The defendant fears that the jury was then free to infer that these prior identifications were made by the officer in the course of police business so as to lead the jury to believe that the 2 men were in the habit of committing crimes together.
Defendant says that this is a subtle violation of People v. Williams (1965), 2 Mich. App. 91, which states the well-settled rule that evidence of other crimes cannot be admitted to show that the defendant was more likely to have committed the offense charged. He alleges that the people are attempting to show that the is of bad character by reason of his association with a companion who was convicted on evidence arising out of the same fact situation in which he is now being charged. Defendant also says that this creates a collateral issue and that the prosecution may not attack the character of the accused when the accused does not take the stand. We find no direct attempt by the people to place the character of the defendant in issue. The fact that Vinson also testified that the 2 men had gone to the scene of the incident together is directly relative to the present case.
We are cited to the case of Buel v. State (1899), 104 Wis. 132 ( 80 N.W. 78), where the accused was cross-examined in a manner which tended to draw out his past criminal behavior and bad character. We reproduce part of that decision to show its irrelevance to this case (p 146):
"Questions relating to mere criminal charges or acts which might be the foundation for criminal prosecutions are usually rejected. They should not be permitted unless there are circumstances in the case suggesting that justice will or may be promoted thereby."
It is clear in the present case that there were no questions of this type asked Vinson concerning the defendant. The Buel court continued (p 147):
"The general rule, that the previous life and character of a witness can be inquired into, must be preserved, and the broad discretionary power of trial courts in administering such rule fully recognized. The trouble here is that the cross-examination was allowed to be carried on manifestly without any reason except to create prejudice against the accused in the minds of the jurors. It was well calculated to have that effect and to bear materially on the ultimate result, especially since the whole case rested on circumstantial evidence." It is apparent that this case is not in pari materia with the case at bar, although the discussion is pertinent. No testimony was taken which could reasonably lead the jury to infer that the defendant had been associated with Vinson for the purpose of committing other crimes. We agree with the people that this testimony as to past associations between the defendant and Vinson did not mention crimes committed by them and that, in addition, there was sufficient other evidence on the part of defendant in this case to support the decision of the jury. We find no reference to, and no reasonable inference of, any bad character of the defendant which would prejudice his right to a fair trial by jury.
T.G. KAVANAGH, P.J., and BURNS, J., concurred.