People v. Dorrikas
| Citation | 354 Mich. 303,92 N.W.2d 305 |
| Decision Date | 13 October 1958 |
| Docket Number | No. 51,51 |
| Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. James DORRIKAS, Defendant and Appellant. |
| Court | Supreme Court of Michigan |
Conlin, Conlin & Parker, Ann Arbor, for respondent and appellant.
Paul L. Adams, Atty. Gen. of Michigan, Samuel J., Torina, Solicitor Gen., Lansing, Edmond F. DeVine, Pros. Atty., Eugene B. Calder, Asst. Pros. Atty., for County of Washtenaw, Ann Arbor, for the People.
Before the Entire Bench.
The defendant in this case was convicted of the crime of arson by a jury in the Washtenaw county circuit court.
The facts with reference to the case have been presented in detail in the opinion of Mr. Justice CARR.
Appellant makes several claims of error, which he feels justify the granting of a new trial, all of which have been answered by Justice CARR in his opinion. I respectfully disagree with only one of his conclusions.
At the trial of the cause defendant did not take stand on his own behalf. He did, however, in defense, present a character witness who was a professor of sociology and criminology at Michigan State Normal College (now Eastern Michigan College), who testified that he had been connected with the college for 27 years; that he had known the defendant, Mr. Dorrikas, for 11 years, and had business relations with him during that whole period. He further testified that defendant's reputation for honesty and integrity in the area of the city of Ypsilanti in which defendant lived and carried on his business was good. The following cross-examination was carried on by the prosecuting attorney:
reputation for honesty and integrity is good? Is that right? A. Yes, sir.
'Mr. Calder: That is all, sir.
'Mr. De Otte: That is all.
'The Court: The Defense rests?
'Mr. De Otte: That is right.'
No objection was made to the cross-examination by defendant's attorney, and no instruction was given the jury by the trial judge as to the purpose of such cross-examination and the limited consideration that they could give to it.
Defendant in his motion for new trial, and on appeal here, contends that this cross-examination and the failure of the trial court to properly instruct the jury were prejudicial to his rights.
Ordinarily where no timely objection was made to the introduction of such testimony and no request to charge was made, this Court would not examine the points relied upon for reversal, and except under unusual circumstances we have no disposition to relax this rule. Nevertheless, as in a number of previous cases, this Court, in the exercise of supervisory control over all litigation, has often asserted the right to consider manifest and serious errors although objection was not made by the party who appeals. The inherent power of this Court to prevent fundamental injustice is not limited by what appellant is entitled to as a matter of right. People v. Steeneck, 247 Mich. 583, 226 N.W. 231; People v. Holmes, 292 Mich. 212, 290 N.W. 384; People v. Kelsey, 303 Mich. 715, 7 N.W.2d 120.
While it is admitted that the general rule seems to be well established that a character witness who has testified to the good reputation of the defendant in a criminal case may be asked on cross-examination, for the purpose of testing his credibility and indicating the weight to be given to his testimony, whether he has heard reports of prior conduct on the part of defendant tending to affect his reputation for honesty and integrity, it is equally well established that such cross-examination shall be limited as to time and, in some instances, place. The admissibility of cross-examination of this type and its effect has been the subject of comment on the part of textbook writers and other students of the law for a number of years. The number of decisions of appellate courts, both in the State of Michigan and other states of the union as well as the United States Supreme Court, indicates to even the casual observer that this particular field of the law has been a very controversial one. This undoubtedly has resulted from trying to write fair and just rules for the conduct of criminal cases, which would preserve the presumption of innocence surrounding a defendant in a criminal case and preserve from prejudice the Constitutional rights of a defendant who does not take the stand, while at the same time making it possible for the authorities whose duty and responsibility it is to prosecute those, thought to be guilty of crime, to have a fair opportunity to learn whether or not witnesses who testify as to the character and reputation of a defendant have adequate knowledge of this reputation, and to test their credibility as witnesses so that a jury may arrive at the proper weight to be given to their testimony.
It seems to us that appellate courts ordinarily have very wisely left this responsibility with the trial judge and have allowed him considerable discretion in determining whether or not particular questions may be asked of such a witness, and have wisely relied upon the trial judge to properly instruct the jury in this regard. Ordinarily we would not believe in an appellate court substituting its judgment on this question for that of the trial court. However, as in this case, where no instruction has been given the jury, and where there is nothing in the record to show whether the trial court was informed as to when, if at all, these alleged acts took place, where so far as the record is concerned, it might well be only a figment of the imagination of the prosecuting attorney, used for the definite purpose of prejudicing the minds of the jurors, we cannot refuse to act.
It would seem that the trial judge failed to use proper care to protect the defendant's rights.
Justice Jackson, speaking for the United States Supreme Court in Michelson v United States, 335 U.S. 469, at page 480, 69 S.Ct. 213, at page 221, 93 L.Ed. 168, with reference to limiting cross-examination of character witnesses in regard to hearsay testimony, said:
'Wide discretion is accompanied by heavy responsibility on trial courts to protect the practice from any misuse.'
Justice CARR quotes at considerable length from the Michelson case in support of his opinion. However, in order to properly understand the decision in that case, it seems to me that greater discussion is needed. In this case Justice Jackson delivered the opinion of the Court. Mr. Justice Frankfurter wrote a concurring opinion, in which he said (335 U.S. at page 487, 69 S.Ct. at page 224):
'Despite the fact that my feelings run in the general direction of the views expressed by Mr. Justice Rutledge in his dissent, I join the Court's opinion.'
Justice Frankfurter felt that great leeway should be given to the trial judge. Justice Rutledge was joined by Justice Murphy in the dissenting opinion in which he wrote to establish what he called the only fair rule to foreclose the entire line of inquiry concerning specific incidents in the defendant's past, both on cross-examination and on new evidence in rebuttal.
Justice Jackson, in the Michelson case, said (335 U.S. at pages 471, 472, 69 S.Ct. at page 216):
'Defendant called five witnesses to prove that he enjoyed a good reputation. Two of them testified that their acquaintance with him extended over a period of about thirty years and the others said they had know him at least half that long. A typical examination in chief was as follows:
'These are representative of answers by three witnesses; two others replied, in substance, that they never had heard anything against Michelson.
'On cross-examination, four of the witnesses were asked, in substance, this question: 'Did you ever hear that Mr. Michelson on March 4, 1927, was convicted of a violation of the trademark law in New York City in regard to watches?' This referred to the twenty-year-old conviction about which defendant himself had testified on direct examination. Two of them had heard of it and two had not.
'To four of these witnesses the prosecution also addressed the question the allowance of which, over defendant's objection, is claimed to be reversible error:
"Did you ever hear that on October 11th, 1920, the defendant, Solomon Michelson, was arrested for receiving stolen goods?'
'None of the witnesses appears to have heard of this.
'The trial court asked counsel for the prosecution, out of presence of the jury, 'Is it a fact according to the best...
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