People v. Hawkins

• Decision Date: 28 January 1975
• Docket Number: No. 1,Docket No. 18745,1
• Citation: 226 N.W.2d 851,58 Mich.App. 69
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lucious HAWKINS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 851

226 N.W.2d 851

58 Mich.App. 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lucious HAWKINS, Defendant-Appellant.

Docket No. 18745.

Court of Appeals of Michigan, Division No. 1.

Jan 28, 1975.

Released for Publication April 1, 1975.

Douglas D. Elliard, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Patricia J. Boyle, William Alexander House, Asst. Pros. Attys., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and ALLEN and PETERSON, ^* JJ.

PETERSON, Judge.

Defendant was charged with the offense of rape, M.C.L.A. 750.520; M.S.A. § 28.788, tried by jury, convicted, sentenced to a term of years, and appeals.

His contention that the prosecutor was guilty of improper argument in personally vouching for his guilt and using inflammatory language is without merit. The prosecutor made no statement of personal belief of guilt but referred only to the testimony of the witnesses; and 'disgusting' is not an unfair or inflammatory description of the act of rape. See People v. Cowell, 44 Mich.App. 623, 628, 205 N.W.2d 600, 603 (1973).

Defendant asserts error by reference to a statement taken from him by a police officer which was never received in evidence. The sole incident in the presence of the jury occurred with the officer on the witness stand:

'Q. (Assistant prosecutor): Did you take any statements from the defendant in this case?

A. (Police officer): Yes, I did.

Q. Did you give him his--

Defense counsel: Your Honor, I am going to object to object to any statements that the defendant made unless there is first a thorough examination or right to cross-examination on a Walker hearing held as to any statements that he might have made.'

The jury was excused, a Walker hearing was commenced and the defendant's statement was held inadmissible when it appeared that a constitutional-rights form executed by defendant separately from his statement had been lost. The jury was recalled, instructed to disregard the reference to the statement, and defendant's motion for a mistrial was denied.

While reference to the statement was, as it developed, error, we find nothing therein of sufficient gravity to have warranted mistrial. Defendant had made no pretrial motion for suppression of the statement. Having failed to do so, he can hardly accuse the prosecutor of misconduct in commencing an inquiry which appeared proper at the time. Having left the matter until trial, he succeeded in obtaining the exclusion of the statement and a prompt curative instruction from the trial judge. We are satisfied that there was no deliberate misconduct by the prosecutor, and that the error was harmless beyond reasonable doubt. See People v. Wichman, 15 Mich.App. 110, 116, 166 N.W.2d 298, 302 (1968), People v. Robinson, 386 Mich. 551, 562--4, 194 N.W.2d 709, 712--14 (1972).

The remaining question is whether there was prejudicial error from the ruling of the trial court in foreclosing impeachment of one of the prosecution witnesses by cross-examination as to his juvenile court record. We do not believe there was.

On the date in question, the witness, Louis Davis, met the victim of the rape for the first time at a social services agency. They were both in their teens. When they went outdoors to have a cigarette, they were accosted by defendant who threatened them and took them to a nearby vacant house where the rape was committed. The cross-examination of Davis included the following:

'Q. Have you ever been to juvenile court?

A. Yes, I have.

Q. For what?'

At which point an objection by the prosecutor was made and sustained.

In People v. Smallwood, 306 Mich. 49, 10 N.W.2d 303 (1943), a 15-year-old girl made an accusation of rape against her father. Asked on cross-examination if she had not 'been in trouble with the juvenile authorities before', the trial court upheld an objection in reliance on 1929 C.L. 12834. ¹

'A disposition of any child under this act, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this act.'

On appeal, a divided court reversed. The majority in effect took judicial notice that young girls often contrive false sexual charges, ² and said:

'We can well appreciate the difficulties that the trial judge had with the case, and also the advantage he had of seeing the witnesses. However, this is a case where the word of one person against another is determinative. Although the girl's waywardness was shown to a certain extent by subsequent testimony, a careful reading of the record does not satisfy us that the entire facts were disclosed. Where the question was so close, all facts pertaining to the credibility of the principal witnesses should have been brought out. * * * (I) n the instant case, the girl has shown both a lack of morals and a hostile motive for having made the charge.' 306 Mich. 54--55, 10 N.W.2d 305.

Based on Smallwood, many recent cases have upheld impeachment of witnesses by cross-examination as to juvenile record, or have reversed for denial of such impeaching cross-examination; however, none of those decisions go so far as to strip the statutory protection from every witness, and rightfully so in view of the purpose of the act. Neither do those decisions purport to limit the usual discretion of the trial judge to control the scope of cross-examination of witnesses. 3 Wigmore, Evidence (3rd ed.), § 944, p. 495, et seq. People v. Layman, 299 Mich. 141, 299 N.W. 840 (1941); People v. Davis, 171 Mich. 241, 137 N.W. 61 (1912); People v. Lewis, 25 Mich.App. 132, 181 N.W.2d 79 (1970) and People v. Glover, 47 Mich.App. 454, 209 N.W.2d 533 (1973). And Cf. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974), as to the exercise of such discretion in the cross-examination of the defendant himself. Thus, the cases have all involved facts similar to Smallwood, allowing impeachment of a complainant in a one-against-one case, ³ or were cases in which the witness was described as a 'key witness' ⁴ or as being a chief witness, indispensable, or otherwise crucial to the case. ⁵ None of the cases involve a discussion of the duties of the trial judge in exercising his discretion, but we think it implicit in all of them that there is such a discretion which, in criminal cases, is to be exercised in favor of impeaching cross-examination, notwithstanding the protective statute, where the credibility of an accusatory witness is essential to conviction.

We think it equally clear that in other situations, the trial judge is required to weight the policy considerations of the statute against the need to attack credibility in the light of all of the circumstances of the case. The preliminary question addressed to the trial judge will be dual in nature, going both to the role of the witness in the trial and to the nature of the juvenile record of the witness. As to...