People v. Henderson

• Decision Date: 04 March 1980
• Docket Number: Docket No. 60920,No. 9,9
• Citation: 408 Mich. 56,289 N.W.2d 376
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Johnny Mack HENDERSON, Defendant-Appellee. Calendar408 Mich. 56, 289 N.W.2d 376
• Court: Michigan Supreme Court

Page 376

289 N.W.2d 376

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Johnny Mack HENDERSON, Defendant-Appellee.

Docket No. 60920.

Calendar No. 9.

408 Mich. 56, 289 N.W.2d 376

Supreme Court of Michigan.

Argued April 3, 1979.

Decided March 4, 1980.

Donald A. Johnston, Grand Rapids, for plaintiff-appellant.

George S. Buth, Grand Rapids, for defendant-appellee.

PER CURIAM.

Johnny Mack Henderson was convicted of arson and embezzlement. The issue is whether it was error to permit, over objection, cross-examination of Henderson concerning his financial condition.

We hold that it was not, reverse the decision of the Court of Appeals, 80 Mich.App. 447, 264 N.W.2d 22 and reinstate Henderson's convictions.

I

Henderson was convicted of arson of real property ¹ and embezzlement over $100. ² The charges arose out of a fire and theft at the service station which Henderson managed.

The station was found in flames. When they were extinguished the combination safe was found open and empty of money. Over $1,400 was missing.

There was no evidence of forced entry into the building or safe. The main power panel controlling the gasoline pumps had been unlocked. The padlocks on the individual pumps were found open and undamaged. The hoses from the pumps were stretched out and the nozzles locked open to continually dispense gasoline toward the station.

The door to the interior storeroom was unlocked and standing open. The contents of the storeroom had been drenched in gasoline. From the length of the pump hoses and the slope of the driveway, it appeared that this gasoline had been carried in and poured from a container.

The fire was started by igniting the flowing gasoline. It was extinguished before reaching the storeroom.

The employees assigned to the station were Henderson and Samuel Chapman, an attendant. Both had keys to the front door, the main power panel and the pumps. Only Henderson had a key to the storeroom, but a duplicate set was kept in the safe. Only Henderson and his district manager were given the combination to the safe.

There was eyewitness testimony tending to identify Henderson as the person who set the fire. ³ He presented an alibi defense. ⁴

A split panel of the Court of Appeals reversed Henderson's conviction ⁵ on the basis of the following colloquy during cross-examination:

"Q. How was your financial situation back in August of 1975?

"A. Not bad.

"Q. How about not good?

"A. Not bad.

"Q. Didn't Consumer's Power on July 28th, '75 turn off your power?

"A. Yes, they did.

"Q. Okay. Hadn't they turned it off once before in April?

"A. They did not.

"Q. They did not discontinue the service on April 4, 1975?

"Mr. Howard (Defense Attorney): Your Honor, I am going to object to this line of questioning. I think it is improper under People v. Johnson, 393 Mich. 428 (sic ) (488, 227 N.W.2d 523).

"The Court: I am familiar with that case.

"Mr. Zerial (Assistant Prosecuting Attorney): We are going to the intent. I think it is obvious as to what his financial condition is.

"Mr. Howard: The man's poverty or non-poverty is not in question in this trial.

"Mr. Zerial: That case I am familiar with, and that was a CCW case.

"The Court: No, that was the television case. That was that case where the television was on the back seat?

"Mr. Zerial: Right.

"Mr. Howard: No, your Honor. It is a CCW case, and the Court says

"Mr. Zerial: Just like I said.

"Mr. Howard: And the Court said

"The Court: Well, I am familiar with either with that case or one like it.

"Mr. Howard: I really don't see the relevance either.

"The Court: Are you trying to show motive or what?

"Mr. Zerial: Yes, that case is entirely different.

"The Court: Well, let me say this to the jury. We are getting some testimony here about who is married and who isn't married, and who has kids legitimately and whose aren't, and who is having the power shut off, and who isn't. Now, those things are not in issue. I mean, the charge here is embezzlement of money, and the charge here is arson. Now, if the prosecutor is bringing this out to show motive, I will permit it, but only for that purpose. We are not charging anybody here with I'd like to say sometimes this is a court of chancery not a court of chastity. So only for that purpose, and I would hope that you would restrict it as much as you can, Mr. Prosecutor.

"Mr. Howard: Your Honor, I would ask that the record reflect my objection.

"The Court: What?

"Mr. Howard: I would ask that the record reflect my objection.

"The Court: Yes, it will, and you may have your exception."

We granted leave to appeal limited to the issue "whether the trial court abused its discretion in permitting, over objection, prosecutorial cross-examination concerning the financial condition of defendant in an embezzlement case." ⁶

II

In People v. Johnson ⁷ this Court reversed a conviction of carrying a concealed weapon because of cross-examination and argument based on the financial condition of the defendant.

Johnson was extensively cross-examined on various aspects of his background, including his poverty and unemployment. In closing argument, the prosecutor said:

"Think about it. There's a man with two cents in his pocket and he hasn't worked for a long time, there's three guns, three fully loaded weapons in the vehicle. That is something that you can consider when you decide whether or not this Defendant committed this particular violation."

We reversed Johnson's conviction, saying:

"Obviously neither poverty nor unemployment is an element of the crime of carrying a concealed weapon. Either a poor man or a rich man may be either guilty or innocent of carrying a concealed weapon. Likewise whether a man is employed or unemployed is no proof or partial proof of carrying a concealed weapon. * * * In short, these things neither in law nor in logic are evidence of defendant's guilt or innocence * * *." ⁸

We found an abuse of discretion in allowing "inquiries designed to demonstrate a causal connection between extraneous matters and guilt on the charge." ⁹

The Court of Appeals has subsequently ruled on the admissibility of evidence of a defendant's financial condition in diverse factual and procedural settings. The court has not seen Johnson as announcing a per se rule that evidence of financial condition is never admissible. ¹⁰ It has, however, been sensitive to the need to scrutinize the admission of such evidence because of its potential prejudicial impact, and has indicated awareness that decisions admitting such evidence might provide a precedent which would, in practice, weigh more heavily on the poor. ¹¹

In the instant case, the Court of Appeals, in holding the evidence inadmissible, said that it could not "permit routine proof of impecuniousness to establish the motive for a theft offense." ¹² It concluded that the evidence was legally irrelevant because its probative value, which it found to be "very low," ¹³ was outweighed by its prejudicial effect on poor persons as a class. The court found that this would be so even if it applied a rule that, on its face, did not discriminate against the poor:

"It may be argued that we should permit proof of the origins of each person's desire for money, whether it be want, or well-fed cupidity. However, greed would not readily be proved. Poverty would. Hence we cannot, consistent with equal treatment to the poor and the well-to-do, indulge ourselves in the fiction that the motive of each may be shown at trial." ¹⁴

In his brief in this Court, Henderson echoes the Court of Appeals concern for avoiding class-based discrimination. Citing a New Jersey case, State v. Mathis, ¹⁵ for the proposition that "there must be something more than poverty to tie a defendant into a criminal milieu," and a federal case, Davis v. United States, ¹⁶ for the proposition that "(w)here the evidence elicited only demonstrates that the defendant is 'poor,' the inquiry is improper," and arguing that admission of such evidence necessarily rests on the premise that "poor people have greater motive to commit theft crimes," Henderson warns that "(b)y allowing evidence of financial condition to be used to show motive in a theft offense, this Court would be permitting economic and social status to be routinely used against a defendant."

We agree with the propositions quoted above from Mathis and Davis. There is a need to avoid undue prejudice in individual cases and to prevent establishment of a "two-tiered standard of justice" ¹⁷ weighing more heavily on the poor. And we recognize that evidence of a defendant's financial condition, because it ordinarily has limited probative value and usually goes to a collateral issue, will often distract rather than aid the jury. ¹⁸

Our decision reversing the Court of Appeals does not, however, allow "routine use" of evidence of financial condition.

Johnson, and most of the post-Johnson Court of Appeals cases involving similar issues, concerned evidence that the defendant was unemployed and poor. ¹⁹

The prosecutor's proofs in the instant case, rather than showing unemployment, established that Henderson was not only employed, but held a managerial position. The evidence that his electricity was shut off for non-payment, viewed in light of this evidence of employment, carried with it no suggestion that Henderson was "poor."

There is a difference between evidence of poverty and unemployment evidence that a person is chronically short of funds and evidence of the sort involved in this appeal, showing that a person is experiencing a shortage of funds that appears to be novel or contrary to what one would expect is typically felt by such a person.

Evidence of poverty, dependence on public welfare, unemployment, underemployment, low paying or marginal employment, is not ordinarily admissible to show motive. ²⁰ The probative value of such evidence is diminished because it applies to too large a segment of the total population. ²¹ Its...