People v. Johnson, Docket No. 2750

• Citation: 163 N.W.2d 688,13 Mich.App. 69
• Decision Date: 28 August 1968
• Docket Number: Docket No. 2750,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 688

163 N.W.2d 688

13 Mich.App. 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger JOHNSON, Defendant-Appellant.

Docket No. 2750.

Court of Appeals of Michigan, Division No. 2.

Aug. 28, 1968.

Released for Publication Jan. 22, 1969.

William F. Goler, Jackson, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Bruce A. Barton, Pros. Atty., Jackson County, Jackson, for appellee.

Before QUINN, P.J., and T. G. KAVANAGH and CORKIN, ^* JJ.

T. G. KAVANAGH, Judge.

Roger Johnson, while at Jackson state prison, was charged with the murder of Frank Clark, a fellow inmate on October 24, 1965. The defendant does not deny that he stabbed Clark, but he claims that he acted in self-defense.

The jury found Johnson guilty of murder in the second degree. ¹ The appeal lists 6 asserted errors, 3 dealing with the court's ruling on objections to the introduction of evidence and 3 with the claim of improper argument by the prosecutor.

The record shows that on cross-examination defendant was asked whether he 'characterized' himself as a calm man or an excitable one, and he replied:

'I characterize myself as being calm.'

At that point, the assistant prosecutor elicited testimony regarding recorded infractions of prison rules, arguments, fights and disturbances in which defendant was involved.

Two approaches have been taken to establish the admissibility of this evidence.

The prosecutor argued before the trial court, in response to objection by defense counsel, that incidents of prior misconduct were admissible to show defendant's 'disposition toward violations and his entire mannerisms.'

On appeal, prosecutor contends that as defendant had characterized himself as a calm man, evidence of prior belligerent misconduct served to test credibility.

As we view it, whatever the reasons advanced, it was improper to admit such evidence.

The argument offered on appeal must fail. The character of a defendant cannot be attacked unless he first puts it in issue by offering evidence of his good character. Defendant's response on cross-examination can in no way be treated as having put his character in issue and, consequently, no rebuttal of good character was in order. See People v. Boske (1922), 221 Mich. 129, 190 N.W. 656. Furthermore, had defendant put his character in issue, it is still error to introduce specific acts of misconduct to prove a bad character. People v. Hill (1932), 258 Mich. 79, 241 N.W. 873. The prosecutor cannot use a statement of self-characterization, cleverly elicited on cross-examination of defendant, as a springboard to reach every prior incident of misconduct, under the guise of testing credibility. On this theory, the evidence was inadmissible.

The prosecutor's explanation before the trial court that such evidence was offered to show 'disposition toward violations' is equally untenable. In a trial for a criminal offense, evidence of other distinct offenses is generally inadmissible, unless tending to show 'motive, intent, the absence of Mistake or accident,' ² or, in sexual offenses, to show 'opportunity, disposition of the parties, and intimate relations tending to break down self-respect.' People v. Williams (1965), 2 Mich.App. 91, 94, 138 N.W.2d 498, 500. These exceptions are not applicable in a homicide case where the evidence of unrelated and dissimilar prior incidents is offered solely to prove defendant was more likely to have committed, or disposed toward the commission of, that offense for which he stands trial.

Evidence of unrelated and collateral matters 'raises false issues and is likely to lead the jury to try the accused of what is not in the information.' People v. Pinkerton (1889), 79 Mich. 110, 113, 44 N.W. 180. To compel defendant to answer such charges is to bring him to trial on one charge and ask him to acquit himself on another. See People v. Wright (1940), 294 Mich. 20, 292 N.W. 539. Such conduct by the prosecutor, in this case, created a highly prejudicial atmosphere for the defendant. Prosecutor's arguments before the trial and before this court justifying admission of the evidence are untenable.

Defendant's assertion that the trial court erred in excluding the criminal record of the deceased, offered for the purpose of showing his quarrelsome and argumentative nature, is also without merit. Such evidence is material only where shown that facts contained on deceased's criminal record, indicating a violent disposition, reflect his general reputation, and that defendant was aware of that reputation. There was no such showing by defendant and the deceased's record was properly excluded.

Defendant also asserts that prejudicial error occurred in prosecutor's final argument to the jury wherein he stated:

'So on the three points of self-defense, on none of them has defendant established his case; and remember, he has to prove all three, and he hasn't established any one of the three.'

This position is clearly contrary to the law in Michigan. See People v. Asbury (1932), 257 Mich. 297, 241 N.W. 144. The assistant prosecutor made numerous references to defendant's burden of proving that he acted in...