People v. Johnson, Docket No. 15062

• Court: Court of Appeal of Michigan (US)
• Citation: 214 N.W.2d 713,51 Mich.App. 224
• Docket Number: Docket No. 15062,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Floyd JOHNSON, Defendant-Appellant
• Decision Date: 15 January 1974

Page 713

214 N.W.2d 713

51 Mich.App. 224

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

Docket No. 15062.

Court of Appeals of Michigan, Division No. 3.

Jan. 15, 1974.

Released for Publication Feb. 19, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George E. Thick, II, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.

HOLBROOK, Judge.

Defendant was tried before a jury and found guilty of first degree murder in the shooting death of one Edward Cox on October 10, 1971. Cox was shot through a closed door while going up the stairs from the gambling part to the bar part of an illegal drinking and gambling establishment. The defendant now appeals as of right.

During cross-examination of Ollie Lee Sangster, a witness called by the defendant, the following colloquy took place:

'Q. (Mr. Webber, prosecutor): And you were arrested and convicted of manslaughter in this county?

'A. But I came back on appeal, and brought it down to felonious assault, and they give me time served.

'Q. And you're now facing trial on two counts of felonious assault?

'A. Yes. * * *

'Q. Now you said you had some fights with Mr. Cox? Tell us about that.

'A. Well, right after this incident, me and him had the, like I--argument about him searching me--

'Q.--That argument resulted in your arrest for armed robbery?

'A. I wasn't arrested for armed robbery, wasn't charged with armed robbery--.'

Although defense counsel did not object to this line of questioning, we are constrained to hold that it was reversible error. In People v. Falkner, 389 Mich. 682, 695, 209 N.W.2d 193, 199 (1973) the Supreme Court stated the rule binding on us here:

'We hold that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by plea or trial.'

The Court in Falkner reversed the conviction of the defendant where two of his alibi witnesses were questioned about prior arrests on higher charges than those to which the two witnesses eventually pled guilty. The reversal came even though no objection was made at trial by the defendant's counsel to the questions. Most recently, in People v. Rappuhn, 390 Mich. 266, 212 N.W.2d 205 (1973), the Supreme Court reversed a conviction where the defendant had been impeached by improper reference to his arrest record. While the Supreme Court in Rappuhn noted that timely objection was made to the improper impeachment, it reaffirmed the Falkner case, and thus preserved the holding that even absent timely objection the improper use of an arrest record to impeach the credibility of a witness is reversible error. (For criticism of this rule on a different but related issue, see the dissenting opinion of Justices Brennan and Coleman in Rappuhn.) Thus, defendant's conviction must be reversed and remanded for a new trial.

While our treatment of the above issue resolves this case, two other issues raised by the defendant on appeal are worthy of discussion in order to avoid errors on retrial.

First, defendant objects to the introduction of a black and white picture of the deceased's partially draped body laying on a table face up with a small bullet hole through the chest. The objection was also timely raised below. The prosecutor justified the admissibility of the picture in the trial below by arguing that the picture would show the bullet hole. The trial judge found that the picture was not inflammatory and that it would be relevant to the issue of the path of the bullet. The test for the admissibility of such pictures was stated in People v. Eddington, 387 Mich. 551, 562, 198 N.W.2d 297, 301 (1972):

'Photographs that are merely calculated to arouse the sympathies or prejudices of the jury are properly excluded, particularly if they are not substantially necessary or instructive to show material facts or conditions. If photographs which disclose the gruesome aspects of an accident or a crime are not pertinent, relevant, competent, or material on any issue in the case and serve the purpose solely of inflaming the minds of the jurors and prejudicing them against the accused, they should not be admitted in evidence.' 29 Am.Jur.2d, Evidence, § 787, pp. 860--861.

This test was reaffirmed in Falkner, supra, 389 Mich at 685, 209 N.W.2d at 194. We note that while the angle of the bullet was an issue in the trial below, this picture, while not in our minds inflammatory, cannot be reasonably seen as tending to show the angle of the bullet, and therefore it is not 'substantially necessary or instructive to show material facts or conditions'. On retrial, therefore, the picture should be dealt with cautiously and should not be admitted into evidence unless it is somehow shown to be necessary or instructive under the Eddington rule.

The second issue we need discuss is whether the prosecutor improperly failed to produce at trial two alleged res gestae witnesses, a Mr. Kemp and a Mr. Henderson, both of whom had been indorsed on the information. When the trial court queried the prosecutor what these two witnesses would have testified to, the following colloquy took place:

'The Court: And what would Mr. Kemp have testified to?

'Mr. Webber: To the best of my knowledge, he was in the crap room area at the time. The same for Mr. Henderson.

'Is this correct, Detective Washington?

'Detective Washington: No, he said he was on the outside and heard the shots.

'The Court: Did he see anything that happened, do you remember, officer?

'Detective Washington: Only that he heard the shot. This is all he told me.

'The Court: This was Henderson?

'Detective Washington: Kemps and Henderson. They was together.'

The defendant's counsel asked that both witnesses be produced, and then moved for a mistrial for failure to produce the indorsed witnesses. He stated that his client thought both witnesses were in the barroom when the shooting occurred. The trial court gave the prosecutor one more day to try to locate the witnesses. When Detective Washington was asked for the first time by the prosecutor if he had been able to serve Kemp with a subpoena, his reply was simply that, 'I wasn't able to find him'. The third day of the trial when Detective Washington was asked what had happened since the opening day of the trial, he testified...