People v. Johnson

• Decision Date: 13 August 1974
• Docket Number: No. 3,Docket No. 16969,3
• Citation: 221 N.W.2d 452,54 Mich.App. 678
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Henry JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 452

221 N.W.2d 452

54 Mich.App. 678

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

Docket No. 16969.

Court of Appeals of Michigan, Division No. 3.

Aug. 13, 1974.

Released for Publication Sept. 17, 1974.

Joseph F. Deeb, Jr., Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH*, JJ.

T. M. BURNS, Judge.

Defendant William Henry Johnson was convicted by a jury on January 3, 1973, of obtaining by false pretenses personal property valued at more than $100. M.C.L.A. § 750.218; M.S.A. § 28.415. He was sentenced on February 15, 1973, to a prison term of from 2 to 10 years and now appeals as of right.

Since defendant's allegations of error relate to the trial court's evidentiary rulings and instructions to the jury, a detailed recitation of the facts of this case is unnecessary to its disposition, and thus only those facts pertinent to our discussion of the issues will be presented.

Defendant contends that the trial court committed reversible error when it allowed the assistant prosecutor, over defense counsel's objection, to inquire into the facts comprising defendant's prior conviction of uttering and publishing.

On direct examination by his attorney, defendant admitted to a 1967 conviction of uttering and publishing. During cross-examination, the trial court overruled defense counsel's objection and allowed the assistant prosecutor to question defendant extensively concerning the factual basis for the 1967 conviction. During closing argument, the assistant prosecutor, in referring to the details of this prior conviction, stated:

'Another offense that involves misrepresenting facts, misrepresenting reality, holding out the check to be other than it was, namely something which would entitle him to payment. It was a flagrant forgery, that's all, and although he said the other checks involved were made out to him, those were after the first one, he did not recall what the name was on the first check.'

Plaintiff asserts impeachment of defendant's credibility as an adequate ground for the admission of defendant's cross-examination testimony. We disagree, for it is well established that once a defendant admits on direct examination to a prior conviction, during cross-examination the prosecutor may not interrogate the defendant regarding the collateral facts comprising that prior conviction, where defense counsel has properly objected to such questioning. See People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973); and People v. Peabody, 37 Mich.App. 87, 194 N.W.2d 532 (1971).

Nor are we able to conclude that the erroneous admission of this testimony regarding the factual basis of defendant's prior conviction was harmless error. Rather, we feel it was prejudicial to the defendant. As we pointed out earlier, the assistant prosecutor during closing argument stressed the specifics of defendant's prior conviction in a manner calculated to encourage the jury to conclude that if defendant had defrauded someone in 1967 he must have also defrauded this complainant in 1972. It is true that defense counsel did not object to this part of the prosecutor's closing argument. However, we are of the opinion that a cautionary instruction could not have cured the error and, therefore, defense counsel's failure to object is not fatal to this appeal. People v. Majette, 39 Mich.App. 35, 197 N.W.2d 78 (1972); People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 (1970).

Defendant's second allegation of error is based upon the trial court's admission of a misdemeanor conviction for the purposes of impeachment. Upon cross-examination, defendant admitted a prior conviction for illegal possession of a starter pistol. Although defense counsel objected to the use of this conviction on the ground that it was irrelevant, the trial court permitted the inquiry. Defendant argues that the trial court committed reversible error. We agree.

In People v. Osteen, 46 Mich.App. 409, 419--420, 208 N.W.2d 198, 203 (1973), our Court, when dealing with this precise issue, stated:

'The prosecutor has no 'right' to stand before the jury and recite defendant's conviction record. When admission is challenged he must offer reasonable grounds upon which the trial judge can justify his exercise of discretion in favor of admission. The dissimilarity between an alleged conviction and charge was held by the Court in People v. Simard, 314 Mich. 624, 23 N.W.2d 106 (1946), to justify exclusion:

"* * * The prosecution thus tried to show that defendant was guilty of a misdemeanor that Had not the remotest connection with the crime charged and was In no way similar in character. * * * While much latitude is allowed in cross-examination to test credibility, the prosecutor cannot bring out independent issues involving other alleged crimes that are entirely Dissimilar both in nature and motive and have nothing whatsoever to do with the issue involved. * * *'

'This proposition is no less applicable to defendant's prior convictions which are entirely dissimilar from the sale of heroin charge.' See also People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971), quoted with approval in Osteen, supra.

The admission of defendant's misdemeanor conviction in the instant case is inconsistent with the guidelines set forth in Osteen and Farrar, supra. Defendant's misdemeanor conviction is entirely dissimilar to the false pretenses charge. The trial court abused its discretion in admitting the challenged misdemeanor, and such abuse of discretion mandates reversal of defendant's conviction.

Defendant's final allegation of error relates to the question of defendant's alleged alibi defense. Defendant claims that our alibi statute ¹ is unconstitutional and that said statute does not apply to cases in which only the defendant himself proposes to give alibi testimony, as opposed to cases in which the defendant intends to call alibi witnesses to support his alibi...