People v. Falkner
Decision Date | 25 July 1973 |
Docket Number | No. 12,12 |
Citation | 209 N.W.2d 193,389 Mich. 682 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Edward FALKNER, Jr., Defendant-Appellant. |
Court | Michigan Supreme Court |
Jerry M. Engle, Asst. Pros. Atty., Jackson, for plaintiff-appellee.
David A. Goldstein and Daniel S. Seikaly, Asst. Defenders, Detroit, for defendant-appellant; John Salmon, Steve Schwartz, Detroit, on brief.
Before the Entire Bench.
After dark in the evening of August 20, 1968, Ernest Rothoeler left his wife on the front porch to close the door of his garage at the rear of the house. A short while later a blast was heard by Mrs. Rothoeler. Mr. Rothoeler was found by his wife on the floor between the back porch and the kitchen dying from a shotgun wound.
Defendant was later arrested and charged with murder on the basis of information supplied by an undisclosed informant and two detained material witnesses who had described defendant's conduct on August 20, 1968.
Defendant was allegedly visiting with two young ladies in an apartment near the Rothoeler home when he invited Miss Edmond to shoot his gun. The two went into an alley where they saw a flashlight beam. According to Miss Edmond, defendant stopped and said, 'Let's shoot this man.' Miss Edmond continued to walk until she heard a shot. She then returned to the apartment. Shortly defendant returned to the apartment and announced, 'I think I shot someone.' Defendant's jury trial resulted in his conviction of first degree murder.
The Court of Appeals affirmed (36 Mich.App. 101, 193 N.W.2d 178 (1971). We granted leave (388 Mich. 753 (1972).
Defendant raises numerous issues which we condense to essentially four:
1. Did the trial court commit reversible error by allowing photographs of the victim into evidence?
2. Did the trial court commit reversible error in Sua sponte providing the jury with these photographs in the jury room?
3. Did the trial court commit reversible error in allowing the prosecutor to discuss prior arrests of the alibi witnesses?
4. Did the trial court commit reversible error in stating the sentence was up to the judge only?
1. Defendant argues that the admission of photographs of the victim was reversible error. The exhibits complained of consist of 1 pre-autopsy photo and 6 photos of the deceased as he was found at the scene. Only one objection was posed by defendant to the admission of these photographs. His objection, addressed to exhibit 3, was that the 'blood trail' was not proven to be decedent's. The trial court noted the objection and admitted these photos only to show what the officers had found at the scene.
Defendant conducted the majority of his own defense, making opening and closing statements and cross-examining the prosecutor's witnesses. His court appointed counsel only handled the examination of defense witnesses. The decision to admit these photographs must stand or fall on its own merits.
The prosecutor cites at least 6 reasons to justify the introduction of the photographs:
1. To prove that death was unnatural.
2. To prove the weapon used was a shotgun.
3. To prove where the victim was when shot.
4. To prove the distance of the victim from the shotgun.
5. To prove the wound pattern.
6. To prove no intervening cause of death.
Recalling our discussion in People v. Eddington, 387 Mich. 551, 562, 563, 198 N.W.2d 297 (1972) we must determine whether these photographs were 'substantially necessary or instructive to show material facts or conditions,' or merely 'calculated to excite passion and prejudice.'
Defendant's appropriately filed notice of alibi and his consistent reliance on alibi as his defense, coupled with the unrebutted proof that Mr. Rothoeler was killed by a shotgun blast, rendered the use of these photographs neither substantially necessary nor instructive to show material facts or conditions. We can find no other reason for their use than to excite passion and prejudice. Therefore, we conclude that it was reversible error to admit the photographs into evidence.
2. Our holding with respect to the first issue dictates the resolution of defendant's second assertion of error. If photographs are erroneously admitted, it is likewise erroneous to provide them to the jury during deliberations.
3. Defendant asserts error in the cross-examination of 2 of his alibi witnesses. The first instance involved defense witness Ardell Robinson:
'
(Emphasis added)
The second involved defense witness Kenneth Brown:
'
(Emphasis added)
No objections were made to either of these questions.
Defendant points out that People v. Brocato, 17 Mich.App. 277, 302--303, 169 N.W.2d 483 (1969), holding it error to inquire into a defendant's prior arrests without conviction, was made applicable to witnesses by People v. James, 36 Mich.App. 550, 194 N.W.2d 57 (1971). He further cites People v. Peabody, 37 Mich.App. 87, 194 N.W.2d 532 (1971) as extending this rationale to defendants who either plead to or are found guilty of an offense lesser than that originally charged.
He would now have us take the last step and apply the 'Brocato-Peabody' doctrine to witnesses in the form of a so-called 'James-Falkner' rule.
Tracing the roots of the doctrine as last cited by us in People v. Eddington, 387 Mich. 551, 566, 198 N.W.2d 297 (1972), we find that several rationales seem to have been considered in the cases which we examine, Infra:
1. Collateral impeachment of a witness by direct testimony of another witness has been considered improper.
2. Questioning regarding arrests which did not result in conviction has been deemed improper.
3. Not limiting the scope of cross-examination has been deemed an abuse of trial court's discretion.
4. Attempted impeachment after the witness has denied the prior charge has been held improper as being collateral.
The earliest cited case discussing the matter seems to be Wilbur v. Flood, 16 Mich. 40 (1867) wherein the defendant in a replevin action was allowed to be cross-examined regarding his prior confinement in the state prison. Justice Campbell, speaking for the Court said:
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...on a material matter in issue. MRE 401; People v. Eddington, 387 Mich. 551, 562-563, 198 N.W.2d 297 (1972); People v. Falkner, 389 Mich. 682, 685-686, 209 N.W.2d 193 (1973); People v. Turner, 99 Mich.App. 733, 745, 298 N.W.2d 848 (1980). The prosecutor referred to the photographs in his clo......
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