*1 App 678 v TERRY MOORE PEOPLE v McFARLAND PEOPLE Opinion of the Court Arrest—Right 1. Criminal Law —Constitutional Law — to Remain Silent. against
The use a defendant at trial of his exercise of his right constitutional to remain silent at the time of arrest prejudicial constitutes error. J. P. V. 2. Witnesses —Defendants—Cross-Examination—Direct Examina- Evidence—Admissibility. tion — prosecutor right A has the to cross-examine a defendant in those examination, though areas covered on direct even the testi- mony may not otherwise have been admissible. Arrest—Right 3. Criminal Law —Constitutional Law — to Remain Witnesses—Defendants—Impeachment. Silent — against The use a defendant at trial of his of exercise constitutional to remain silent at the time of arrest prejudicial only constitutes error where the defendant has allegations made no on direct examination as to what was said or not said at the time of arrest. Burglary Evidence—Demonstration—Admissibility.
4.
—
opened,
A
demonstration of how a door was
in a trial
breaking
entering,
part
explana-
for
is admissible as
theory
entry.
tion of his
[4]
[1,
[2]
Requiring
21 Am Jur
3]
58 Am
58 Am Witnesses
physical
29 Am Jur
Jur,
Jur,
acts,
defendant in criminal case to exhibit
2d,
Witnesses 61.§
References
2d,
Criminal Law 362.
during
Evidence 638 et
trial and in
§§
627,
for Points
§
§
629.
presence
seq.
in Headnotes
jury.
self,
Colista & for defendant Burke, McFarland. Ingle & for defendant J., R. B. P. and Before: V. J. Burns L. and R. JJ. Smith,* tried and con-
R. B. J. Defendants were Burns, victed,, breaking entering and an occu- jointly, larceny. intent to commit pied dwelling with 750.110; 28.305. MSA MCLA we reverse. They appeal and cross-examining defendant prosecutor, The while McFarland, following testimony: adduced the
”Q. entering? breaking for and you Were arrested said, "A. The sergeant boys that did 'these are entering breaking you’re under arrest’. and "Q. "A. "Q. Nothing? say? you What did
Nothing. * assign- Appeals by judge, sitting circuit on the Court of Former Í963, 6, pursuant in 1968. to Const art 23 as amended § ment App Opinion of the Court flabbergasted.
”A.I was “Q. police about you Did tell the Earl? ever mean, sir, about Earl? you 'A. What do police? ”Q. mention Earl to the you Did ever I directly police "A. I a chance. went to never had station. you talk
”Q. police Did the officer to at the station?
'A. Yes.
”Q. him? you What did tell asking "A. He if I was a heroin started addict. ”Q. you tell him? What did talking heroin, they ”A. to me about After were quiet they attorney. get said I had the to be and to an guess I I said should. ”Q. anything You didn’t tell them else? my ’A. Outside of name and stuff. I mean —I was cooperate.
trying to *3 ”Q. you Did tell them about a broken windshield? No, ”A. I didn’t.
”Q. you fight? Did tell them about a No, 'A. I did not. ”Q. you perspiring sweaty Were or a little when the you, you arrested if remember? imagine
’A. I quite I was. I’d walked far.” We think this testimony is the type exact testimony prohibited Bobo, in People v 390 Mich (1973). 355; 212 NW2d Also, the trial court should not have the allowed prosecutor to conduct the irrelevant demonstration of opening a door with a credit card. addition,
In instructing when jury, the trial court should keep mind the distinction between inferring intent from an presum- unlawful act and ing intent from an unlawful act.
Reversed and remanded for a new trial. Smith, J., concurred.
R. L. People v Brennan, by P. J. V. J. (dissenting). matter, In this P. J. V. jointly tried convicted of the defendants were occupied entering dwelling an breaking and with 750.110; MCLA larceny. MSA intent to commit 28.305. have reversed this conviction
My colleagues by opinion. dissent from respectfully my
I must fellow review of the My pre- in this case. record judges to me than that picture sents a different reached colleagues. Consequently applica- a different by my is, in authority my opinion, tion of the cited re- quired. colleagues quote cross-exam-
My
ination of defendant McFarland and use it as the
Bobo,
citing People
reversal,
v
for the
main reason
355;
(1973),
390 Mich
This
in the
ine
same areas.
feel it is academic in trial
practice
opened
that once the door is
on direct
examination
those
may
areas
be examined
on
cross,
though
even
they may not otherwise have
Johnson,
Roger
been
admissible.
*4
632;
People v Mark-
(1969);
Mich
killed about police reading fight, Earl, the about him about telling right rights, him of his to a about them his lawyer, stating "no” as to whether he about his telling statement, and about his to make a wanted lawyer. police a that he wanted upon prose- areas which are the exact These examined him. cution Supreme Court Justice Thomas Giles Kav- opinion supra, Bobo, in his well-written
anagh, present p 359: "In the case on said on direct gave no defendant examination whatso- regarding any statement made to the ever anyone else.” qualification clearly The shows that had he given any testimony regard- on direct examination ing statement, a cross-examination in that area beginning Also, would have been admissible. at the opinion, Kavanagh Justice framed the question as follows: "Where an accused exercises constitutional arrest, remain silent at the time of the
to does the use against of such him at trial silence under the doctrine impeachment by prior of tute inconsistent statement consti- prejudicial allegations error where he made no on direct examination as to what was said or not said at the time of arrest?” point again qualification out restate " * * * part question:
the last made no what was said or not said at the time of arrest?” of that he where
allegations on direct examination as to My colleagues misapplied have the mandate in Bobo. issues,
As to the other I have examined the entirety they instructions in their and find that charge fairly jury on the law. *5 P. J. Dissent V. J. was opened how door
The demonstration being part as permissible is entry. is This admissi- theory explanation of determine must then who jury to a ble it shall to it. give weight credibility what It be case. should affirmed. find this no error