People v. Cherry

Decision Date24 December 1974
Docket NumberNo. 55206,55206
Citation224 N.W.2d 286,393 Mich. 261
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick E. CHERRY, Defendant-Appellant. 393 Mich. 261, 224 N.W.2d 286
CourtMichigan Supreme Court

Before the Entire Bench.

ORDER

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.

COLEMAN and FITZGERALD, JJ., dissent:

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 ...

To continue reading

Request your trial
47 cases
  • People v. Wallach
    • United States
    • Court of Appeal of Michigan — District of US
    • 6 d2 Outubro d2 1981
    ...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 ......
  • People v. Lytal
    • United States
    • Court of Appeal of Michigan — District of US
    • 17 d1 Março d1 1980
    ...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......
  • People v. Duncan
    • United States
    • Michigan Supreme Court
    • 1 d4 Janeiro d4 1976
    ...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); ......
  • People v. Nabers
    • United States
    • Court of Appeal of Michigan — District of US
    • 3 d2 Fevereiro d2 1981
    ...of evidence showing his involvement in the crime.4 People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974).5 Here, the trial judge did in fact recognize his discretion to exclude similar-acts evidence on the record. The controversy cent......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT