People v. Farrar

• Decision Date: 01 October 1971
• Docket Number: No. 2,Docket No. 10532,2
• Citation: 36 Mich.App. 294,193 N.W.2d 363
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert C. FARRAR, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 363

193 N.W.2d 363

36 Mich.App. 294

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert C. FARRAR, Defendant-Appellant.

Docket No. 10532.

Court of Appeals of Michigan, Division No. 2.

Oct. 1, 1971.

Released for Publication Jan. 21, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and QUINN and V. J. BRENNAN, JJ.

LEVIN, Presiding Judge.

The defendant, Robert C. Farrar, was convicted by a jury of felonious assault of a police officer. ¹

The questions presented on this appeal concern statements made by the prosecutor during the trial and in his closing argument and the prosecutor's reference to the defendant's criminal record in cross-examining him. We reverse and remand for a new trial.

The defendant shot his brother, Henry, in the leg at about 3:00 in the morning on March 22, 1970. The shooting was reported to the police by the landlord of the house in which Henry lived. Upon arriving at the scene, police officers observed the defendant with a gun in his hand.

At the trial, the officers testified that defendant pointed the gun at the chest of one of them for about five seconds before finally dropping it to the ground. The landlady testified that the defendant backed out of a door of the house, that he did not point the gun at the officers, and that he dropped it and raised his hands immediately upon being told to do so. The defendant related substantially the same version of the facts.

I.

The prosecutor made the following statement during his closing argument:

'Every day they're (policemen) called pigs and people assault them with their fists and words. You know, they don't bring these things in. Those people are never charged with offenses. They don't bring these things into court unless they really happened. The point is the reason why they're here is this actually happened as the officers testified that it happened.'

In People v. Humphreys (1970), 24 Mich.App. 411, 418, 180 N.W.2d 328, 331, we reversed a defendant's conviction because we concluded that the prejudice created by the prosecutor's improper argument could not have been cured by instructions even if the defendant's lawyer had timely objected. The argument in that case was similar to the argument in the present case; there the prosecutor argued:

'I can assure you this: That if the defendant in the opinion of the police and in my opinion were innocent of this charge, we would not be here right now.'

In Humphreys, we stressed that there was a close question of fact turning on the credibility of the witnesses. So too in this case the jury's decision on the disputed factual issue of whether the defendant pointed the gun at one of the officers before dropping it to the ground depended on its appraisal of the witnesses.

A new trial is required even though the defendant's trial lawyer failed to make proper objection. ² The presumption of innocence protects the defendant in a criminal case with equal force whether the witnesses against him are police officers or ordinary citizens. The prosecutor may not subtly convert the presumption of innocence into a presumption of guilt by appealing to the jurors to perform a civic duty to support the police:

'The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict. ³

Both the Supreme Court of Michigan and our Court have repeatedly stressed that the prosecutor may not express a personal belief in the guilt of the defendant. ⁴ It is the prosecutor's duty, as well as the court's, to see to it that the defendant receives a fair trial:

'The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.' ⁵

Unless we enforce the rules we encourage their violation and add to the burden of the appellate courts. Our frequent strictures against this kind of argument mean little unless we are prepared to reverse and require a new trial. A prosecutor who crosses a clearly defined line and a trial judge who makes no effort to stop him, ⁶ have only themselves, not the appellate courts, to blame if a judgment of conviction is reversed and the case must be retried because of improper argument.

II.

In cross-examining the defendant, the prosecutor asked him if he had been arrested and convicted of attempted murder. Subsequent questioning brought out that some years before the incident which gave rise to the instant prosecution, the defendant had been Charged with attempted murder, and had pled guilty to the reduced charge of aggravated assault.

The questions were improper. A defendant's credibility may not be impeached by reference to a prior charge of which he was not convicted. ⁷ A prosecutor may not by innuendo inject evidence otherwise inadmissible. ⁸

III.

We address ourselves to additional assignments of error concerning questions likely to arise again upon the retrial.

The defendant contends that the judge erred when he failed to recognize that he may in the exercise of discretion refuse to allow any questioning of a defendant concerning his previous criminal record.

The relevant statutes provide:

'No person shall be disqualified as a witness in any civil or criminal case or proceeding by reason of his interest in the event of the same as a party or otherwise or by reason of his having been convicted of any crime; but such interest or conviction May be shown for the purpose of affecting his credibility. A defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.' M.C.L.A. § 600.2159 (Stat.Ann.1962 Rev. § 27A.2159); originally enacted as P.A.1881, No. 245; words 'civil or' added by P.A.1915, No. 314, C. 17, § 64 (emphasis supplied).

'No person shall be excluded from giving evidence on any matter, civil or criminal, by reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, May be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.' M.C.L.A. § 600.2158 (Stat.Ann.1962 Rev. § 27A.2158); originally enacted as P.A.1861, No. 125; see fn. 21 and accompanying text. (emphasis supplied.)

In Luck v. United States (1965), 121 U.S.App.D.C. 151, 156, 348 F.2d 763, 768, the United States Court of Appeals for the District of Columbia Circuit, in a two-to-one decision, held, under a statute reading fundamentally as does Michigan's, that a trial judge may, in the exercise of discretion, exclude evidence of prior crimes. In so holding the court emphasized that the statute:

'says, in effect that the conviction 'may', as opposed to 'shall', be admitted; and we think the choice of words in this instance is significant. The trial court is not Required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field.' (Emphasis by the Court.)

In subsequent decisions the District of Columbia Circuit fully adopted the Luck construction of the statute. ⁹ In Gordon v. United States (1967), 127 U.S.App.D.C. 343, 383 F.2d 936, guidelines were suggested for the exercise of this trial judge's discretion in an opinion written by Chief Justice (then Judge) Burger: Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions.

In the few years since they were decided, Luck and Gordon have prompted a number of courts to take a new look at their statutes. The Supreme Courts of New Jersey ¹⁰ and Massachusetts ¹¹ announced their adherence to the traditional view that the prosecutor has the right to have prior conviction evidence introduced. The Court of Criminal Appeals of Texas ¹² stated that its rule 'lies between the practice common in such states as New Jersey and the Luck doctrine.' The Supreme Court of Minnesota noted the 'recent trend' of leaving the question to the trial court to decide but ruled that it was for the legislature to make any change; the dissenter declared that when a majority of the court agrees that a statutory rule is manifestly prejudicial to the rights of an accused it should be set aside because the legislature is not empowered to enact rules of evidence which deprive a defendant of a fair trial. ¹³

The United States Courts of Appeals have, on the whole, adopted the leadership of the District of Columbia...