People v. James
| Decision Date | 26 October 1971 |
| Docket Number | 9499,No. 1,Docket Nos. 9475,1 |
| Citation | 194 N.W.2d 57,36 Mich.App. 550 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Murphy JAMES, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnny BULLARD, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
D. Michael Kratchman, Kratchman & Kratchman, Detroit, for james.
Abba I. Friedman, Hyman, Gurwin, Nachman, Friedman & Weingarden, Detroit, for Bullard.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.
Before LEVIN, P.J., and QUINN and V. J. BRENNAN, JJ.
Defendants Joseph Murphy James and Johnny Bullard were convicted of robbery armed. 1
The robbery occurred at a bar in the City of Detroit at approximately 12:30 a.m. on December 7, 1968. Three eyewitnesses identified either one or both of the defendants as two of the men involved in the robbery. The defense presented two alibi witnesses who testified that the defendants were at a gas station having their automobile repaired at the time the robbery was committed.
The first issue concerns the introduction into evidence of two handguns found in the cabin of the defendants' automobile when they were arrested. A police officer testified that the automobile was stopped for speeding within an hour after the robbery was committed. At the time the police were unaware of the robbery. The driver, defendant James, produced an Alabama driver's license and a Michigan registration for his automobile which had Michigan license plates.
The police officer testified that James was asked to alight from the automobile and was placed under arrest for driving without a Michigan driver's license after he admitted during questioning at the scene that he resided at a Michigan address and was employed in this state. As James alighted, the officer said he observed a handgun on the floor near James' seat. The other passengers, one of whom was defendant Bullard, were ordered out of the vehicle and the second handgun was found in the cabin.
The police officer acted within his authority in arresting James. The officer had reasonable cause to believe that James' failure to produce a Michigan driver's license was a violation of the Motor Vehicle Code. 2 The officer testified that it is the usual procedure to issue a summons for driving without a valid license at a police station rather than on the street. His testimony is consistent with our understanding of the practice of the Detroit police in that regard. We could not rightly say on this record that the declared reason for stopping the defendants' vehicle or for James' arrest was not the real reason. 3
When James emerged from the automobile and a gun was spotted in plain view, 4 the officers had reasonable cause to believe that a concealed weapon was being carried in violation of law 5 and were justified in making an arrest on that ground without a warrant. 6 The subsequent search of defendants and of the cabin of the automobile was a reasonable incident of lawful arrests. 7
The defendants make two additional claims of error in relation to the admission in evidence of the two handguns. They claim that the guns were not connected to the robbery. In our opinion, however, the evidence of possession, one hour after the commission of the robbery, of guns which might have been used to commit it, had a logical and rational connection to the other evidence presented by the prosecutor. 8
The defendants also contend that James' trial lawyer made a serious error in not having him testify at the hearing on the admissibility of the seized evidence concerning his version of the facts at the time the defendants were stopped and arrested. We have no way of knowing why the lawyer failed to call James; perhaps James had made statements to his lawyer inconsistent with the claim now advanced. In this connection, we recently observed:
Shortly after the arrest of the defendants, the police searched the trunk of the automobile without a warrant and found a shotgun. Ultimately the trial judge ruled that the shotgun was inadmissible; we agree with that ruling. When the defendants were arrested the police were unaware of their possible connection with the robbery. There was no reason to believe that fruits of the driving without a license or concealed weapons offenses or evidence tending to establish those offenses would be found in the trunk. There was no need to search the trunk for weapons as the men were effectively in custody and could not possibly reach any weapons in the trunk. 9
The defendants contend that they were prejudiced by the judge's postponement of an evidentiary hearing on the admissibility of the shotgun until after it was identified before the jury.
The shotgun was displayed on the prosecutor's table during the first two days of the four-day trial. During this period a witness identified the shotgun as looking like one of the guns used in the robbery. No objection was made to his identification or to the placing of the gun on the table during these first two days. At the beginning of the third day, defense counsel asked that the prosecutor not be allowed to display this gun before the jury, and the prosecutor then put the gun under his table.
At the close of the third day, the judge conducted a separate hearing on the admissibility of the seized evidence and it was then that he ruled that the seizure of the shotgun was the product of an illegal search and hence inadmissible. In his instructions to the jury, the judge cautioned that 'in no circumstance should you consider the sawed-off shotgun as evidence in this case.'
The rule in this state is that 'evidence exhibited to the jury but not offered or introduced is to all intents and purposes considered as evidence.' 10
While a motion to suppress evidence known to have been seized must be made before trial, the judge may waive this requirement and allow a belated motion. 11 It appears that it has become the frequently followed practice in the Recorder's Court of the City of Detroit to allow the motion to be made at the outset of the trial and sometimes for the court to defer consideration of the motion until a propitious time during the course of the trial. This may have the advantage of avoiding some duplication in the hearing of evidence but exposes the defendant to the risk of prejudice resulting from the jury learning about illegally obtained evidence before it is effectively suppressed.
We need not comment on the practice followed in this case, but if it is followed it is incumbent on the prosecutor and the judge to prevent reference to or exhibition before the jury of evidence that may be suppressed until after the judge rules on the suppression motion.
The remaining assignment of error concerns the prosecutor's cross-examination of a defense alibi witness. This witness was one of two persons who testified that the defendants were at a gas station at the time the robbery occurred.
On cross-examination, the prosecutor did not establish any former relationship between the alibi witnesses and the defendants. The prosecutor then asked one of the witnesses whether he had ever been arrested. Defense counsel objected, and the jury was excused. A discussion followed and the judge said that he would 'make a determination as to the appropriate cautionary instructions' when he gave the general instructions at the close of the case, but no instructions were given. 12 Defense counsel was allowed to meet the prosecutor's cross-examination by going into the details of the arrests and showing that they did not result in convictions. 13
The extent of the allowable cross-examination of a witness on collateral matters, for the purpose of impeaching his credibility, is a matter confided to the discretion of the trial judge. To that general rule there is a significant exception: a witness may not be examined concerning an arrest that did not result in conviction.
The exception limiting cross-examination concerning prior criminal record to convictions is recognized by the great weight of authority. 14 We are convinced that the law of this state is in accord.
The people cite no decision of our Supreme Court or of our Court in a criminal case affirming a conviction where the credibility of a witness called by the defendant was impeached by reference to an arrest which did not result in the witness's conviction. It appears upon examination of the cases cited to us and from our own research that the statements that a witness may be questioned about arrests were either dictum 15 or made in cases factually distinguishable. 16
In People v. Brocato (1969), 17 Mich.App. 277, 169 N.W.2d 483, we concluded, despite earlier statements and holdings by our Supreme Court, 17 that the credibility of a defendant in a criminal case who testifies in his own behalf may not be impeached by an arrest which did not result in conviction. We observed:
The reasoning of our Court...
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