*1 App 510 JONES PEOPLE v THEODORE 1978, 22, 28000, February 27999, at 28001. Submitted Docket Nos. 17, April 1978. Detroit. Decided one of assault with count R. Jones convicted Theodore great bodily than murder and two do harm less to intent Court, County Circuit Sanilac counts of felonious assault Bach, appeals. Held: M. J. Defendant Arthur trial where the in a criminal new trial is mandated A prosecution’s two defense witnesses cre- cross-examination of prac- religious regard potential ated a beliefs of defendant and witnesses. tices and Reversed and remanded. J., dissented:
Bashara, prosecution’s of two defense witnesses The religious regarding those the defendant was beliefs and their scope improper of the cross-examination was where the of the elicited on direct nature confined examination.
Opinion op the Court Cross-Examination—Religious Be- 1. Witnesses —Criminal Law — liefs —Statutes. regarding prosecution’s cross-examination of a defendant lay qualifications in his as an ordained minister prohibits which was not erroneous under statute examining opinions where the a witness as to his lay minis- ordained himself testified qualifications questions regarding for that ter and position prejudicial did area not extend into [1-3, [4] [5] Impeaching 6 Am witness 5] Am Jur Jur Am Jur 2d, 2d, witness: References reference Assault Witnesses 618. 2d, Witnesses propriety for Points § Battery §§ 471, 478, 484, §§ prejudicial belief in Headnotes 56-58. or lack effect 497, of it. 76 ALR3d 533. impeaching v Theodore (MCLA 600.1436; religion practices specific belief on the 27A.1436). MSA Cross-Examination—Religious *2 Be- Law — 2. Witnesses —Criminal Attendance. liefs —Church defendant, cross-examination, regarding of a on A church, arguably at the at directed attendance record while accepta- practice, reasonably religious falls within defendant’s claim of member- limits of cross-examination on a ble ship. Cross-Examination—Religious Be- Law — 3. Witnesses —Criminal liefs —Statutes. reversed a new trial A conviction should be and defendant’s granted prosecution’s cross-examination of two de- where the potential regard to created a for fense witnesses religious practices and of the and beliefs 27A.1436). (MCLA600.1436; MSA witnesses Degrees op 4. Criminal Law —Assault—Different Assault —Sin- gle Act. may degrees different of assault A defendant be convicted of resulting single support if a act the facts the verdicts. by Bashara, J.
Dissent Cf.oss-Examination—Religious Be- Law — Witnesses —Criminal liefs —Statutes. disprove sought witness which Cross-examination of defense God-fearing quali- religious, claim of moral prohibits examining ties did not violate statute which opinions scope the cross- where the of witness as to his testimony nature confined examination was designed to show the elicited on direct examination which practice adherence to the of defendant’s truthfulness and his directed abstinence from alcohol and the cross-examination inconsistency with the attention its on that show (MCLA 600.1436; MSA trial defendant’s own 27A.1436). Kelley, Attorney General, A. Frank J. Robert Anthony Sy- Derengoski, General, and J. Solicitor Prosecuting people. Attorney, kora, for (by Cummings, Monaghan, & Thomas McColl 82 McNamee) Bendure, & and Gromek Michael appeal. D. C. J.,P. Before: Beasley, Bashara Riley, JJ. Theodore Roosevelt
D. C. J. Defendant Riley, appeals of count of conviction one great bodily harm less with intent to do assault 28.279, two murder, 750.84; MSA MCLA than assault, 750.82; MSA MCLA counts felonious 28.277, for he was concurrent which sentenced prison. years in and five-to-ten terms two-to-four argument appeal presents Defendant’s first issue cross-exami- this Court with sensitive opin- regarding their nation witnesses practices. the de- Defendant asserted ions and *3 capacity insanity due fenses of diminished consumption questions posed re- of alcohol. garding religious that beliefs related the claim he the that lacked defendant was so intoxicated specific requisite intent. that direct examination defendant testified
On experienced in 1953 a conversion he had drinking and, result, a had as abstained all period Following years. his con- for a of some preacher lay he in his version was ordained a began testified he to drink church. Jones that prior the two or to the some three months date depressed continu- offense because he was ing over a drank illness. He testified further heavily during day he that the of the incident and shooting memory anyone. recol- had no His last passing then a lection was of out in bar and awaking morning. jail in the next how was asked
On cross-examination defendant qualifications church, he attended what often People v Theodore church, in were to be ordained and about his religious training and study. son, Jones, Phil
Defendant’s called as a defense witness, that he had never seen his father testified night to the but he did prior question, drink reli- give any testimony cross-examination, gious opinion drinking. On following question and answer occurred: "Q. I it you say you take had been [Prosecutor] Bar, Applegate you in religious your don’t share father’s drinking?
views on "A. No.” [Phil Jones]
Defendant called several witnesses testify and reputation. to his One such witness Riggs, pastor of defendant’s Raymond pastor church. On direct examination related church, personal background history acquaintance with defendant training, knowledge of defendant’s church work. He although stated that did not attend basis, regular a full services Riggs member of the church. Reverend testified church, that under the tenets of the were members required to abstain from alcohol. As far as totally aware, he was had lived to that up requirement.
On if prosecutor basis, regular church members were required, on to reaffirm their belief and adherence forbidding rule re- drinking. Riggs Reverend *4 sponded that such a requirement existed. witness was then asked if he could reconcile de- begun fendant’s trial that he had drink the date prior some two or three months that he offense with his church was abiding by the abstinence rule: Opinion of the Court person required periodic on a "Q. Is [Prosecutor] particular penitence? profess in this their belief
basis Yes, [Raymond Riggs] "A. sir. they this required follow
"Q. they Are to declare particular penitence? Yes,
"A. sir. today? present Mr. Jones testified "Q. you Were when Yes, "A. sir. from the stand testify Mr.
"Q. you Did hear to this incident on the prior three months that two to drinking? February, 24th of commenced Yes, "A. sir. contin- "Q. you testify him also that he has Did hear subsequent periodic to this to drink on a basis ued present time? right up to the
incident Yes, "A. sir. knowledge opinion your "Q. Does that affect veracity?
truthfulness and Yes, exception be "A. it would to the extent living, in deed so. to his mode of conduct [sic] testimony that he contin- "Q. you Can reconcile his gave oath here this morn- ued to drink that he under following ing, speaking church total abstinence? no, No, no, point, particular
"A. sir. good? "Q. you say How that his can point of me up "A. to this Because fellowship with was was he still in official our if yes I said I said continued he would this was with, rest you be dealt can assured. "Q. The this church would deal with deviation faith? "A. In deed so. [sic] cross- prosecution’s
Defendant contends that these wit- of himself defense 27A.1436, 600.1436; MCLA MSA nesses violated which reads: incompetent person may as a witness
"No be deemed *5 People v Theodore Opinion of the Court court, any proceeding, matter or on account of his opinions subject religion. on the may No witness be questioned in opinions religion, relation to his either before or after he is sworn.” allegations We will deal with the as to each wit- ness in order.
We do not find the cross-examination
of defend-
ant erroneous under
the statute. Defendant him-
self testified that he
preacher
was ordained a lay
in his church.
prosecutor’s questions
The
regard-
ing his qualifications
that position did not
extend
into
area
prejudicial
beliefs on
specific practices
religion.
question
While the
regarding his attendance
rec-
ord at church was
directed at
arguably
defendant’s
religious practice,
it
falls within
reasonably
accept-
able limits of cross-examination
on a claim of
church membership. 400 Mich
(1977).
253, 262;
It is the cross-examination of Reverend Riggs which gives us greatest concern. The prosecu- tion brought out required defendant was by the rules of his church to periodically reaffirm before the church his compliance tenets, with its including abstention from alcohol. The witness was then asked whether his opinion on defendant’s credibility reputation was affected the dis- parity between his trial testimony, in which he admitted drinking, and his church testimony.
The relevancy of this cross-examination Court honesty reputation for issue of disputed. is not concern Our truthfulness questions, but with the relevance with the method. questions expressly statute states *6 purpose
religious opinions
permissible. The
are not
strictly
possibility
to
avoid
of the statute is
against
prejudiced
jurors
a certain
that
will be
disagreement
personal
the
with
because of
witness
recog-
object
religious
This
of that witness.
views
feelings many people
deep personal
hold
nizes the
feelings
may unavoidably
religion,
conflict
solely
duty
juror’s
decide
with a
sworn
personal
presented,
injection of
without
evidence
prejudices.
quite
applying
are
the statute
The recent cases
any possibility
In
of
exists.
strict where
(1974),
People
175;
Hall,
In
the
were more
facts
closely
in
at bar. The
akin to those
the case
spoken
had
of his
defendant
direct examination
membership
in
Bible to
belief
trial
his character. The
court
demonstrate
questions concerning
his stated
whether
People v Theodore
in the
with
belief
Bible
consistent
his claimed
found,
charged
defense
offense.
Court
error,
inquiry
stating:
such
reversible
prosecutor
fully
"The
challenge
entitled to
character,
good
either upon
claim of
cross-
through
or
extrinsic evidence in rebuttal.
taken the form inter
challenge might have
alia
Such
convictions,
prior
contradicting
evidence
membership
attendance,
the claimed church
reputation
or
tending
disprove
evidence
the claim of
religious,
qualities,
moral
God-fearing
if indeed
It
such evidence existed.
would
compe-
not have been
tent, however,
prosecutor
inquire
nature,
substance and content
of his
beliefs
order to show that such beliefs
qualities
good
were inconsistent
,court
competent
claimed. Nor
itwas
for the
to conduct
inquiry.
such
Aside
debatable relevance
moral,
an inquiry
such
to rebut
of a
claim
God-
fearing
character,
questioning
such
expressly
by the
our
holding
forbidden
statute and
*7
”
Hall, supra.
In Bouchee Court the in found error the of the defendant’s character witness, who pastor. church
"Reverend by Williams was called counsel for the defendant as a character The witness. direct examina- carefully tion was inquiry concerning confined to an the reputation veracity. defendant’s Upon plain in community the for cross-examination, however, an in effort to ex- justify knowledge his claimed of the defend- reputation stated, ant’s Williams veracity, for Reverend 'People who says are connected with our often good 'good Bouchee is a man.’ expression man’ by which was employed the in an effort witness explain the for basis Bou- veracity justification chee’s for offer did not the prosecuting attorney general for a in- to conduct character and entire concerning the defendant’s quiry any 'clarifying inquiry’ specifically did not warrant prac- religious beliefs and concerning the defendant’s at 265. tices.” Riggs of in Reverend questions the
While not concerned case were present the objectionable as found as those specifically beliefs nevertheless, course of the cross- in the possibility preju- gave rise defendant’s credibil- impact the dice. Whatever had lied resulting from ity drinking, stronger even resumption of about perceived have been may on his impact participating he had lied while by since prac- the tenets and affirming ritual periodic It inconceivable of the church. tices more affected may by have been jurors some of the to the church to confess his actions his failure though Even de- the actions themselves. than violating church tenet on admitted to fendant Bouchee limiting read cross-exami- drinking, we to additional nation to exclude reference doctrine. breaches of church of the cross- hold that the combined effect We Riggs of Phil Jones and Reverend examinations regard potential created a and his religious practices and beliefs poten- such Reading strictly, witnesses. statute Hall, supra. a trial. tial mandates new in the further We should make two statements support new trial. If the facts event verdicts, of different may be convicted single act. See resulting from a degrees assault *8 Fields, 347; 239 372 v Mich NW2d People 66 (1976). Second, take care the trial court should forth of intoxication as set instruct on defense 519 v Theodore by Dissent Bashara, J. People Crittle, 367; v 390 Mich NW2d 196 (1973).
Reversed and remanded. J.,P.
Beasley, concurred. (dissenting). J. Bashara, I must respectfully dissent. majority finds no error in the cross-exami- apparently, and,
nation of defendant
would not
solely
single question
by
on the
reverse
addressed
prosecution
to defendant’s son. Reversal
based on the cross-examination of defendant’s
Riggs. My
witness,
Reverend
evaluation
of that
differs from the characterization
majority.
ascribed to it
Stringent proscriptions
placed upon
have been
inquiry
practices,
beliefs,
into the
opinions
People Hall,
of witnesses.
v
175;
(1974), People Bouchee,
consumption night negating any possibility crime, of the requisite formed the criminal intent. Riggs
The direct examination of Rev. encom- passed testimony regarding organization qualifications church, that defendant had to required minister, exhibit as an ordained practice attendance, of total abstinence from practice, alcohol, defendant’s adherence to that and defendant’s latter for truthfulness. The aspects upon by three were focused prosecutor in his I cross-examination. believe that *9 Bashara, J. Dissent properly conducted in accordance was quoted by majority. authority Its with the scope of the testi- to the nature confined People mony examination, v direct elicited on "tending supra, evidence and elicited religious, disprove and God- moral claim fearing qualities”. Bouchee, 400 Mich at Riggs’ analysis, In direct examina- the final testimony Rev. designed to show the defend- tion and his adher- for truthfulness ant’s practice of from alcohol. ence to the abstinence attention on that directed inconsistency the de- its show thereby give testimony, and fendant’s own trial evaluating the defendant’s a basis reputation testimony theory of defense. To reverse would be tantamount such record basis proscription on cross-examination an absolute subject matter in the direct examina- where the specifies certain reli- tion of witness primary gious practices that form the and beliefs theory of defense. basis of I affirm the conviction. would