People v. Johnson, 11

• Decision Date: 01 December 1969
• Docket Number: No. 11,11
• Citation: 382 Mich. 632,172 N.W.2d 369
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roger JOHNSON, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 369

172 N.W.2d 369

382 Mich. 632

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

No. 11.

Supreme Court of Michigan.

Dec. 1, 1969.

Frank Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., Jackson County, Paul R. Adams, Asst. Pros. Atty., Jackson County, Jackson, William F. Goler, Jackson, for defendant-appellee.

William F. Goler, Jackson, for defendant-respondent.

Before the Entire Bench, except T. G. KAVANAGH, J.

ADAMS, Justice.

On October 24, 1965 a stabbing occurred in a hallway outside a dining room in Jackson Prison. Frank Clark, a prison inmate, died as a result of knife wounds inflicted by defendant. The defendant, Roger Johnson, was proceeded against upon an information charging him with murder. He was found guilty of murder in the second degree by jury verdict.

On appeal to the Court of Appeals, that Court held that the cross-examination of defendant by the prosecutor was improper and that the prosecutor's final argument to the jury with regard to the law as to self-defense constituted prejudicial error. The Court of Appeals reversed and remanded. 13 Mich.App. 69, 163 N.W.2d 688. Upon application to this Court by the prosecuting attorney for Jackson County, leave to appeal was granted. 381 Mich. 803. Six questions were presented. They will be dealt with in the sequence in which they arose during the course of the trial.

I

Was error committed by the prosecutor's examination of defendant in regard to separate, distinct and unrelated offenses?

The following is contained in the defense's opening statement:

'Now, we will bring out through the testimony of this witness, the defendant, who will take the stand, incidentally, something about his background, such as will be material to you so that you can get some idea of what kind of man the defendant is.'

During direct examination of defendant by his attorney, it was brought out that defendant was an inmate at the State Prison of Southern Michigan because of a murder which was committed while defendant was with someone who killed another fellow.

Upon cross-examination, defendant was asked:

'Q. Would you characterize yourself as a calm man or an excitable one?

'A. I characterize myself as being calm.'

Thereupon, without objection, defendant was questioned with regard to various incidents that had occurred in prison involving prison guards and convicts. The questioning by the prosecutor was straightforward. Defendant was simply asked to tell about or to explain incidents inside the prison that would make his irritable.

Finally, he was questioned with regard to an incident that occurred on May 18, 1966. The objection made by his counsel was sustained by the court, the judge ruling that the incident was too far beyond the date when the stabbing occurred.

The prosecutor then endeavored to go into an incident that occurred about a month before the stabbing. An objection was again made. The objection was overruled. The court stated:

'The only purpose for which they are being offered is on this question of the disposition of the defendant, which is already in issue now. It is in the record.

'I assume that is the only purpose it is being offered. Is that correct?

'The Court: The jury will so understand that is the only purpose they are being offered for. They are not substantive proof and shall not be considered so by the jury as to the commission of the offense on October 24, 1965, the stabbing, an alleged stabbing, I am referring to.'

The prosecutor then proceeded to question the defendant with regard to a number of incidents, all of which occurred prior to the stabbing on October 24, 1965. One of the passages in this cross-examination is the following:

'Q. O.K. Then, December 24, 1964, you were written up for assault on another convict. Do you remember that?

'A. 24?

'Q. 1964.

'A. What?

'Q. December 24th.

'A. December. Yes.

'Q. Do you remember having an argument?

'A. Yes.

'Q. You called it not an argument. You called it a discussion in talking to the officer, and you told--the officer separated you, and then you followed the other man and had a fight after the officer left. Do you remember that?

'A. Yes, we did.

'Q. Can you explain that?

'A. It was a fight.

'Q. You were going to settle something man to man, is that right?

'A. He requested the fight.

'Q. Any time somebody requests to fight, you go along with it, is that right?

'A. No, I don't. I would try and avoid it to the best of my ability.

'Q. In this case you followed him?

'A. We was going in the same direction. The fellows separated us.'

Following the above questioning when the prosecuting attorney attempted to go into an incident that occurred three months after the stabbing, upon objection that 'incidents that occurred subsequent to this matter' would be irrelevant and immaterial, the court ruled, as before, that such incidents were too remote and this line of questioning concluded.

The testimony on cross-examination has been presented at some length in view of the holding of the Court of Appeals that 'Such conduct by the prosecutor, in this case, created a highly prejudicial atmosphere for the defendant.' 13 Mich.App. 69, 72, 163 N.W.2d 688, 690.

As a general rule, the extent and control of cross-examination in a prosecution for a crime is left largely to the sound discretion of the trial court. People v. Fedderson (1950), 327 Mich. 213, 41 N.W.2d 527. If derogatory questions are put to a witness, it is for the trial court to control such conduct (People v Davis (1912), 171 Mich. 241, 137 N.W. 61), and its rulings will not be reversed except on a showing of abuse of discretion.

When a defendant takes the stand, he waives his constitutional right to refuse to answer any question that may be material to the case and which would, in the case of any other witness, be legitimate cross-examination. People v. Dupounce (1903), 133 Mich. 1, 94 N.W. 388. In this case, the entire trial revolved around the question as to whether or not defendant had stabbed in self-defense or had committed murder.

In deciding the question of proper cross-examination of defendant as to other incidents, the Court of Appeals considered the following cases decided by this Court:

People v. Boske (1922), 221 Mich. 129, 190 N.W. 656, states 'an accused's character or reputation cannot be put in issue by the state.' In the present case, defendant's character was placed in issue by the defense in the opening statement.

In People v. Hill (1932), 258 Mich. 79, 241 N.W. 873, on cross-examination of defendant's good character witnesses, the prosecuting attorney asked questions with regard to incidents he assumed the witness knew nothing about but which the prosecutor suggested might subsequently be developed during the trial. The cross-examination was held to be improper since it did not go to test the witnesses' credibility or knowledge of defendant's reputation and good character.

In People v. Pinkerton (1889), 79 Mich. 110, 44 N.W. 180, testimony of various persons that tended to vilify the respondent was used to convict the respondent of keeping a house of ill fame. A majority of the Court held that the respondent had not had a fair trial because the two issues which were pertinent to the criminal charge were lost sight of in the mass of testimony.

People v. Wright (1940), 294 Mich. 20, 292 N.W. 539, differs from the present case because of the crime charged. In Wright, the defendant was charged and convicted of manslaughter. There was no charge, as here, of murder. In that case, '* * * the prosecuting attorney by inference or insinuation gave the impression to the jury that defendant had made improper use of his gun on other occasions; * * *.' The Court held that in the prosecution of a crime which did not involve the element of motive, intent, scheme or plan, the cross-examination as to prior incidents indicating motive or intent should have been excluded.

In the present case, the court confined the cross-examination to incidents which occurred prior to the stabbing. No attempt was made by the prosecutor to create a wrongful impression in the minds of the jury by insinuation or by innuendo. Rather, the questioning was calculated to bring from defendant his own evaluation of his character and to refute his claim of being a calm man. Finally, the judge at the very time of cross-examination was careful to charge the jury that all such testimony went only to the question of credibility and was not to be considered as substantive proof as to the commission of the offense on October 24, 1965. The cross-examination was proper. No error was committed.

II

Was error committed by the prosecutor's examination of defendant in regard to the details of the previous conviction of murder in the second degree?

As above noted, counsel for defendant on direct examination first brought up the subject of defendant's previous conviction of murder in the second degree. At that time defendant's counsel attempted to go into the details of the earlier crime. Upon objection by the prosecuting attorney, this line of questioning was halted by the judge. Upon cross-examination, the prosecutor elected to question defendant with regard to the earlier crime. This line of questioning was objected to by defendant's counsel. The court again ruled that such questioning should not be pursued. It was not improper for the prosecution to question defendant with regard to his prior conviction in view of the fact that this line of questioning was opened up by defense counsel on direct examination. The questioning was quickly cut off by the trial judge. No error was committed.

III

Did the trial court err in refusing to permit the introduction of the criminal record of the deceased at the time of the trial of this cause?

The criminal record of the deceased, Frank Clark, was brought into court by subpoena duces tecum. Upon the commencement of the trial, the court made the...