Thе defendant appeals his conviction of the offense of sodomy. MOLA 750.158; MSA 28.355.
The defendant took the stand and denied that he had committed the offense. At the conсlusion of his testimony, his lawyer brought out that he had previously bеen convicted of drinking and fighting offenses and had pled guilty to “indecent liberties.”
The entire cross-examination оf the defendant consisted of the following:
By Mr. Stephan[assistcmt prosecuting attorney]:
“Q. Mr. Peabody, yоu pled guilty to indecent liberties in Chicago ?
“A. That is right.
“Q. What was the original charge?
“Mr. MilanowsTti {defendant’s lawyer]: Objection, your Honor.
“The Court: It is cross-exаmination, you brought it out, Mr. Milanowski.
“Q. What was the original charge?
“A. Uh—
“Q. You can’t recall?
“A. It had something to do what they first said it was—
“Q. Rape?
“A. No, I don’t think anybody was raped or anything.
“Q. Gross indecency?
“A. It might have been that.
“Q. It might have been gross indecency?
“A. Yes.
“Mr. Stephan: That’s all.”
In
People v. Brocato,
*89 “a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant’s credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a cоnviction, is slight at best. When weighed against the great danger thаt the jury, despite careful instructions, might misapply such evidеnce, the scales of justice tip in favor of exclusion, United States v. Beno (CA 2, 1963), 324 F2d 582.”
Both the holding and the reasoning of our Court in
Brocato
oblige us to reverse the defendant’s conviction. The gross indecency charge was not substantiated by а conviction and, therefore, the peoplе were not entitled to bring out on cross-examination thаt the defendant had been charged with that offense. Defendants who plead guilty to lesser offenses, as well as those who are convicted after a trial of thе originally charged offense or of a lesser offense, are entitled to the protection of the
Brocato
rule. See
People
v.
Farrar,
Thе defendant’s lawyer did not open the door to the impermissible inquiry concerning the original charge by bringing out on direct examination that the defendant had been convicted of indecent liberties. We have rejected the contention that a defendant is deprived of the effective assistance of counsel when his lawyеr brings out his prior record on direct examination. Seе
People v. Jelks,
To hold that а defendant’s lawyer opens the door hy adverting to а defendant’s prior conviction record during direct examination would confront defendants and their lawyers with an unnecessary dilemma: whether to reveal a prior record on direct examination and thereby open the door to inquiry otherwise impermissible, or to leave it to the prosecutor to bring out the record for the first time on cross-examination. A defendant should not be penalized because his lawyer seeks to soften the unfavorable impact on the jury of his client’s cоnviction record by bringing it out himself rather than standing by so that the prosecutor can belabor it on cross-examination.
Reversed and remanded for a new trial.
Notes
See, also,
Cachola
v
The Kroger Company,