People v. Falkner, 12

CourtSupreme Court of Michigan
Citation209 N.W.2d 193,389 Mich. 682
Docket NumberNo. 12,12
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy Edward FALKNER, Jr., Defendant-Appellant.
Decision Date25 July 1973

Page 193

209 N.W.2d 193
389 Mich. 682
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Roy Edward FALKNER, Jr., Defendant-Appellant.
No. 12.
Supreme Court of Michigan.
July 25, 1973.

[389 Mich. 683] 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.

T. M. KAVANAGH, Chief Justice.

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 [389 Mich. 684] 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.

Page 194

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 [389 Mich. 685] 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,[389 Mich. 686] 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:

'Q. Have you ever been convicted of a criminal offense?

'A. Have I ever been convicted of a criminal offense?

'Q. Yes.

'A. No.

'Q. In the year 1967, weren't you convicted of the offense of receiving

Page 195

stolen property here in Jackson, Michigan?

'A. Oh, if that is what you mean. I am sorry. I misunderstood. I was placed on probation. I figured if I had been convicted I'd be doing time in Southern Michigan Prison.

'Q. I see. I see. You were charged with unarmed robbery and eventually convicted of receiving stolen property, is that correct?

'A. This is correct.' (Emphasis added)

The second involved defense witness Kenneth Brown:

'Q. Mr. Brown, do you have any previous criminal convictions prior to the disturbing peace conviction?

'A. Yes.

'Q. What was that, please?

'A. It was receiving stolen property.

'Q. You were charged with unarmed robbery and pled guilty to receiving stolen property, is that correct?

'A. That charged was dropped.

'Q. That was the original charge?

[389 Mich. 687] 'A. Yes, but it was dropped.

'Q. And, you pled guilty in that same case to receiving stolen property?

'A. Stolen goods.' (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) [389 Mich. 688] 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:

'* * * It is claimed to have been erroneous, as an attempt to discredit the witness by improper means, and to prove by parol what rests in record evidence. We do not think the objection tenable. It has always been found necessary to allow witnesses to be cross-examined, not only upon the facts involved in the issue but also upon such collateral matters as may enable the jury to appreciate their fairness and reliability. To this end a large latitude has been given, where circumstances seemed to justify it, in allowing a full inquiry into the history of witnesses, and into many other things

Page 196

tending to illustrate their true character. This may be useful in enabling the court or jury to comprehend just what sort of person they are called upon to believe, and such a knowledge is often very desirable. It may be quite as necessary, especially where strange or suspicious witnesses are brought forward, to enable counsel to extract from them the whole truth on the merits. It cannot be doubted that a previous criminal experience will depreciate the credit of a witness to a greater or less extent, in the judgment of all persons, and there must be some means of reaching this history. The rules of law do not allow specific acts of misconduct, or specific facts of a disgraceful character, to be proved against a witness by others. He may be proved by record evidence to have been convicted of infamous crimes, but not to have done other infamous deeds, nor to have undergone personal disgrace. And even as to previous conviction of infamous crimes, the rule is seldom of any great service, because no one can be expected to know in advance what witnesses may appear, nor what may have been their history. Unless the remedy is found in cross-examination, it is practically of no account.

'It has always been held, that within reasonable limits a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. [389 Mich. 689] The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should, prevent any needless or wanton abuse of the power. But within this discretion we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility, and it is certain that proof of punishment in a state prison may be an important fact for this purpose. And it is not very easy to...

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