People v. Cherry
| Decision Date | 24 December 1974 |
| Docket Number | No. 55206,55206 |
| Citation | 224 N.W.2d 286,393 Mich. 261 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick E. CHERRY, Defendant-Appellant. 393 Mich. 261, 224 N.W.2d 286 |
| Court | Michigan Supreme Court |
Before the Entire Bench.
On order of the Court, defendant's conviction is peremptorily reversed and a new trial ordered on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion.
Defendant was convicted of breaking and entering with intent to commit larceny and rape. When the Prosecutor sought to cross-examine defendant about a prior rape conviction, defense counsel objected and an argument commenced. The trial judge cut off the argument, however, saying, 'You cite the cases and that's enough.' Defense counsel did cite various cases regarding the admissibility of evidence of other offenses not prior convictions. Later the court overruled the objection.
This Court finds that the judge failed to exercise his discretion in allowing the testimony. True, the trial judge did not specifically say that he was exercising his discretion. We doubt that many judges would say in effect, 'I have exercised my discretion and so overrule the objection.' They more likely would simply consider the matter and proceed to rule.
None of us can read the judge's mind, but we interpret his words and actions to mean that he had been asked to exercise his discretion and had done so.
Although the trial was three years before Jackson, in another day another judge might find Jackson among the cases cited in a similar situation.
We would affirm.
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...it had discretion to exclude evidence of theft offenses. See People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974); People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974). While it is true that the trial court never specifically stated that it recognized its discretion to exclude evidence ......
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People v. Lytal
...MRE 609(a). When invoked, this discretion must not only be recognized but exercised. People v. Jackson, supra; People v. Cherry, 393 Mich. 261 (224 N.W.2d 286) (1974). In the instant case Judge McDonald identified the decision to be made but declined to make it until after Defendant testifi......
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...390 Mich. 410, 415, 213 N.W.2d 97 (1973).30 See People v. Merritt, 396 Mich. 67, 80, 238 N.W.2d 31 (1976); People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974); People v. Jackson, 391 Mich. 323, 332, 217 N.W.2d 22 (1974); Quigley v. Dexter Twp., 390 Mich. 707, 709, 213 N.W.2d 166 (1973); ......
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