*1 Mich 266 390 v RAPPUHN PEOPLE Testifying—Witnesses—Examina- 1. Criminal Law—Defendant Charges Arrests—Higher tion—Cross-Examination—Prior Convictions—Impeachment—Objections—New —Prior Trial. regarding prior charges may inquiry arrests or No be made against the examination or cross-examination of a witness in conviction; result in which did not neither such witness higher original with reference to such witness be examined conviction, plea by charges have not resulted whether which therefore, trial; in a case is or a defendant criminal entitled to prosecutor, allowed over a new trial where the .court credibility objection, impeach timely discuss- defendant’s ing charges prior defendant on for which he was arrests not convicted. Testifying—Convictions—Prior 2. Criminal Law—Defendant Sentences. prior of a defendant’s on The introduction of the sentence reversible error because is cross-examination accused, is undertaken and not the it conduct relevant, ensuing punishment, for the which sentences vary often from tribunal to tribunal and same offense (MCLA600.2158). judge 3. Criminal Law—Evidence—Prior Conviction—Statutes—Con- struction. permitting be evidence of convictions should statute 600.2158). (MCLA strictly construed Testifying—Credibility—Prior 4. Criminal Law—Defendant Sen- tences—Appeal and Error. as the duration and details Cross-examination a defendant prior prison to test is error. sentences his his [7] [1-5] [6] 58 Am 30 Am Jur Am Jur Jur 2d, 2d, Judges Reference 2d, New Evidence 1175. Trial § 119. for Points § § 121. Headnotes Dissenting Opinion T. E. M. S. Coleman, JJ. Brennan *2 Testifying—Prior 5. Criminal Law—Defendant Conviction— Object. Prior Sentences—Parole—Failure to sentence, place Evidence 'the of of of confinement or parole credibility time of are all irrelevant to the aof presented objection witness but that issue is not where no was testimony made to the irrelevant respects defendant in those prosecutor relating on cross-examination to defendant’s prior convictions. Appeal Trial—Objection—Evidence. 6. and Error—New appellate performs An court ordering its traditional function in judge reversal and trial a new when makes an error ruling upon objection to irrelevant evidence. Judges—Canons Ethics—Miscarriage 7. of Judicial of Justice. require The Canons of Judicial Ethics a trial to avoid causes, except interference in the trial of in rare instances prevent miscarriage justice.
Appeal Appeals, 2, Court of Division B.R. Burns, J., Fitzgerald P. and Domelen, JJ., and Van affirming Oakland, L. Templin, Robert J. Submit- (No. 8, ted March 1973. 1973, March Term 53,021.) Docket No. Decided November 1973. 62 reversed. Gary James Rappuhn was rape convicted of and kidnapping. Defendant appealed to the Court of Appeals. appeals. Affirmed. Defendant Reversed and remanded for a trial. new
Frank Kelley, J. Robert A. General, Attorney Derengoski, Patterson, L. Brooks General, Solicitor Knox, R. Frank Prosecuting Attorney, Chief Counsel, for Appellate the people. Leitman,
Bruce T for defendant on appeal. Mich 266 op Opinion the Court numerous issues raised in Williams, J. Of dispositive focus on as we case, one this reversible error committed trial court whether objection, over timely prosecutor, allowing the credibility by discussing defendant’s impeach Also, we consider the defendant. arrests impeach may attempt a prosecutor whether by ques- on cross-examination witness’s and details the duration relating to tions sentences. prison
I—FACTS (MCLA rape convicted of jury was Defendant 28.788) (MCLA kidnapping 750.520; MSA 28.581). Appeals Court of af- 750.349; MSA *3 62; 180 conviction, NW2d the firmed 17, 1972. 387 (1970). July on leave granted We Mich 809-810. Rappuhn testified examination direct
On attempted convicted 1966 he had been August, guilty. He also plea on a assault felonious led to convic- arrests which three other admitted tions. following occurred: the
On cross-examination kidnapping time for at that "Q. You were arrested assault? and felonious your Objection, "Mr. Húoe counsel]: [defendant’s Defendant has admitted
Honor, only thing that the the attempted felonious and convicted he was arrested is to it. That’s all there assault. re- you just objection; the are What is
"The Court: peating? attempted kid- something about
"Mr. Hooe: He said napping. I didn’t attorney]: prosecuting Davey "Mr. [assistant kidnapping. 'attempted’, I said
say attempted object, I was convicted Hooe: he "Mr. I don’t think the felonious assault. Prosecutor able is surrounding inquire into details the arrest. That is it, admitted.” he all there was to After much discussion overruled the objection: Well, going "The Court: the Court is to allow the inquire to other
Prosecutor as arrests of this Defend- objection ant. Your is on the record. jury.”
"You return the kidnapping And about was asked and answered: "Q. (By you Davey): Mr. Have been ever arrested for
kidnapping, Rappuhn? Mr. Yes,
"A. sir. "Q. you And have ever been arrested for felonious assault? time, At yes,
"A. the same sir. "Q. kidnapping charge? The same time as the record, please, "Mr. Hooe: going Court I’m object grounds on the the Defendant answered the question, given he has the information about the Febru- ary, arrest and conviction. "The Court: Overruled. (By "Q. Davey): charged Mr. You were with two time,
counts at that correct? please, objection. Hooe: Court "Mr. same you "The Court: objecting grounds Are it on repetitious? *4 Yes, Honor, your "Mr. Hooe: going into details. going
"The Court: He isn’t into the details.
"Mr. Hooe: Pardon? gone "The Court: He yet, hasn’t into details as Coun- sel, just repeating, bringing repetition he’s out you already the answer It which is overruled. elicited. "Q. (By Davey): particular you Mr. For offense 266 390 Mich counts, correct, is that charged kidnap- with two were assault? ping and felonious your Honor. Objection,
"Mr. Hooe: "The Court: Overruled. Yes, sir.”
"The Witness: had been charged the defendant The fact offense very with which kidnapping, with he case, argued to in this was charged jury was argument: final during the prosecutor’s beginning convicted of in 1960 of "Here is a man simple at a later time 1960 of larceny, then unlaw- automobile, driving away who was arrested for fully although 1964, breaking entering, not convicted in crime, auto, larceny from an convicted of another was charged kidnap- [sic; actually was with in ping, although offense, assault, and felonious very same guilty year to a lesser offense. The pled he charged separate— with a happened, this he was before this offense—on a separate occasion.” BY USE II—IMPEACHMENT OF DEFENDANT ARRESTS PRIOR OF Falkner, decided case of recently In the (1973), 682, 695; 209 NW2d Kavanagh speaking T. M. this Chief Justice Court ruled: any examination or cross-examination "[I]n witness, regarding prior inquiry ar- may no be made against did not charges or such witness which
rests result conviction; witness be exam- neither such original charges higher which ined with reference to conviction, plea or not resulted in whether have added.) (Emphasis trial.” was In Falkner of alibi witnesses Here reference to an arrest record. impeached by impeached defendant himself who was it was *5 Opinion of the Court clearly reference to his arrest record. Falkner speaks impeachment any to the witness use Therefore, anof arrest record. defendant is enti- tled a new trial on basis of Falkner. BY Ill—IMPEACHMENT REFERENCE TO THE AND DETAILS LENGTH OF SENTENCE above, As we stated is entitled to a new However, trial under the rule Falkner. required since a new this Court will ad- might dress itself to one of the other issues which again prose- is, arise at the new trial. That impeach cutor a witness’s on cross-ex- questions relating amination to the duration prior prison and details of sentences.
A. Facts any direct,
On defendant did not make state- resulting ment as to the of sentence testify. his convictions which he did On following exchange cross-examination the took place prosecutor. between the defendant and ”Q. you days And had where lived three to this particular crime? Howell, Brighton, Michigan;
"A. Michigan. "Q. What kind of you living institution were in there? Camp Brighton ”A. Camp. Prison ”Q. just prison You had been released from three occurred, days when this crime is that correct?
”A. sir. Yes
”Q. prison And what offense were you at the you time were released? Attempted
'A. felonious assault. ”Q. sentence, your Rappuhn? what And was Mr. ”A. years. One a half to two "Q. you And how much time did on the one and serve years? a half to two Eighteen
'A. months. Now, "Q. you ever been incarcerated in any have penal Camp besides State Prison other institution *6 Brighton? at Michigan Training Unit, Yes, sir, Ionia, in
"A. I was Michigan.
"Q. that? year was What 'A. 1964.
"Q. long you there? And how were and a half months. Approximately "A. ten you there? "Q. offense were And for what Larceny "A. from an auto. your sentence as a result of
"Q. And what was conviction? years. five
"A. One and a half to "Q. you time did serve? How much Altogether? "A.
"Q.Yes. Approximately years.
"A. three 'altogether,’ you "Q. you mean did serve And what do you mean way; what do state- a different ment? parole attempted I as a violator on
"A. went back felonious assault. occurred, parole offense
"Q:You were on when that that correct? Yes,
"A. sir.”
B. Law People v Justice, Judge, now O’Hara
Former
White,
35;
In on cross-examination this prosecu- that he had been convicted. admitted tion then asked:
"Q. your And what was sentence? that as object I’ll
"Mr. Evans [defendant’s counsel]: immaterial, being your Honor. op Opinion the Court
"The Court: The sentence?
"Mr. Evans: Yes. your objection. I
"The Court: overrule This is cross- testing examination. He is his credibility. He may question.” App 35, answer 38-39; 181 NW2d 805. Appeals
The Court of held that the introduction of the of defendant’s sentence was reversible error. agree Judge
We with O’Hara’s analysis reasoning, which he set forth pithily as follows:
"It is the accused, conduct undertaken *7 ensuing punishment, and not which is relevant. Moreover, for sentences the same offense often vary from tribunal to tribunal and judge. speculate whether, "We choose not and what extent, of a testimony ten-year maximum sentence jury have influenced the and denied defendant guarantee impartial constitutional fair and length trial. The introduction of defendant’s sentence was error. say reversible We cannot that it did prejudice not inure to the of the defendant. MCLA (Stat 28.1096). 1954 769.26 Ann Rev § The statute § permitting evidence of convictions should be 35, strictly 39-40; App construed.” 26 Mich 181 NW2d 803, 805-806.1 sentence, length the conditions under on,
which Judge served and so as O’Hara ob- serves, are not defendant’s conduct but uncer- tain It sequel. is defendant’s conduct that is rele- vant and by which his be tested. credibility may We therefore it hold is error to cross-examine 1 App People Ungurean, The White case was followed in v 35 Mich (1971). 143; 192 342 NW2d 266 274 390 Mich the duration and as to details of his to test his prior prison credibility.2 sentences on the one hand of We are not unmindful Kotek, 408, 412; (1943) 7, 11 v 306 Mich NW2d 9 previous the use of a implied prison where we impeach defendant’s credibility sentence to would had the have been reversible error reference to the in the presence made jury. sentence been We, however, prefer to base our decision on the of White Judge and precedent factual O’Hara’s reasoning. on the other
We are not unmindful hand of the Flood, leading cases of Wilbur v traditional 16 (1867) Clemens v 40; Mich 93 Am 203 Dec (1869). Conrad, 170, cases, These however, questions not of the deal with duration prior prison and details of sentences but with "whether was ever confined in the [defendant] prison” state in the first case or "whether he had been convicted” in the second case. Consequently, Wilbur and Clemens are distinguishable. Michigan of the dealing
Neither
two
statutes
with
touch this exact issue.3
2California,
example,
makes the same distinction:
cross-
"[A]
questions
examiner’s
limited
must be
to the fact of conviction and the
crime; may
go
nature of the
surrounding
examiner cannot delve into the
and conditions or circumstances
ant.”
he
not
into the details or circumstances
omitted];
certainly
the crime
the cross-
[citations
of the
of time served
surrounding
parole
of a defend
(1941).
723, 732;
People Wynn,
v
44 Cal
2d
112 P2d
(1943).
161;
State,
13 So 2d
Cowan
See also Powell v
195 Miss
*8
1966).
Commonwealth,
App,
(Ky
T. E. J. that evi- Brennan, place sentence, dence of of of con- parole finement, or are all the time irrelevant credibility.
Any
Court,
former decisions of this
are to
which
contrary, ought
to be overruled in a case
properly presenting the issue. The
issue
not
presented
objection
here because no
was made to
testimony.
respect,
In
irrelevant
this case
distinguished
People White,
is to be
(1970),
35;
Mich
The distinction between this case and White is It not casual. lies at heart the functions of judges appellate both trial courts. ruling
aWhen in makes an error upon objection ap- evidence, to irrelevant pellate performs court its traditional function in ordering reversal and new trial. 600.2159; witnesses; depositions,
MCLA MSA 27A.2159 as "Parties testify” provides part: comment on failure of criminal in person disqualified any "No shall be witness civil or as a proceeding by criminal case or the convicted of for the event of reason of his interest party having as a or been same otherwise or reason his crime; any but such conviction be shown interest or purpose affecting credibility.” his *9 Mich 266 Brennan, Opinion by Dissenting T. E. J. But does the trial court what error commit is received when irrelevant evidence without objec- judge tion? a trial have done? What should object? Should he the testimony
Should he order stricken it instruct the that is irrelevant? jury reprimand asking Should he counsel the question failing or counsel for to opposing object? jury separate
Should he excuse the make a the establishing record failure to object was strategic and deliberate? sponte? (And, sua
Should he declare a mistrial if attach?) so, does jeopardy require The Canons of Judicial Ethics a trial causes, in judge to avoid interference the trial of except prevent in rare to miscarriage instances justice. expanding
The notion in this Court that a trial in judge overriding a criminal case has some duty step into the breach whenever he feels that help defense dangerous depar- needs is a counsel jurisprudence. ture from our established suppose concept It difficult the can be protection limited to the of the defendant. Cer- tainly, people are also entitled to a fair trial. If previously prosecution a convicted witness were concerning cross-examined by defense counsel incarceration, objection details of his without the prosecutor, judge would not the trial be obli- gated to intrude? burden,
Haying thus undertaken objec- sans tion, keep all jury, irrelevant matter from the source, from whatever in judge the role of the trial completely criminal case is transformed. He is longer adversary no impartial referee must, proceeding. He becomes who censor reversal, upon pain pass upon judgment Opinion Dissenting Brennan, J. T. E. admissibility every asked either lawyer. figure becomes central *10 inquisitor. Being is, effect, the trial. He obligated cqunsel’s questioning to interfere with objection, without invitation or his silence denotes approval admissibility of the relevance and every question asked.
Being required responsibility to assume for ev- judges ery question posed, reasonably will expect opportunity propriety to consider the jury. each before it is heard When the trial has thus assumed the rolé inquisitor, responsibility he will bear prosecution. successful as well as And, errorless day, prisoner will stand between the at who interrogator? the bar and his J., M. S. concurred T. E. Bren- with Coleman, J. nan,