People v. Peabody

• Court: Court of Appeal of Michigan
• Writing for the Court: LEVIN
• Citation: People v. Peabody, 194 N.W.2d 532, 37 Mich.App. 87 (Mich. App. 1971)
• Decision Date: 22 November 1971
• Docket Number: Docket No. 10390,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Freddie G. PEABODY, Defendant-Appellant

Page 532

194 N.W.2d 532

37 Mich.App. 87

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Freddie G. PEABODY, Defendant-Appellant.

Docket No. 10390.

Court of Appeals of Michigan, Division No. 3.

Nov. 22, 1971.

Released for Publication Feb. 23, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, 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 R. B. BURNS, P.J., and LEVIN and T. M. BURNS, JJ.

LEVIN, Judge.

The defendant appeals his conviction of the offense of sodomy. M.C.L.A. § 750.158; M.S.A. § 28.355.

The defendant took the stand and denied that he had committed the offense. At the conclusion of his testimony, his lawyer brought out that he had previously been convicted of drinking and fighting offenses and had pled guilty to 'indecent liberties.'

The entire cross-examination of the defendant consisted of the following:

By Mr. Stephan (Assistant Prosecuting Attorney)

'Q Mr. Peabody, you pled guilty to indecent liberties in Chicago?

'A That is right.

'Q What was the original charge?

'Mr. Milanowski (defendant's lawyer): Objection, Your Honor.

'The Court: It is cross-examination, you brought it out, Mr. Milanowski.

'Q What was the original charge?

'A Uh--

'Q You can't recall?

'A It had something to do what they first said it was--

'Q Rape?

'A No, I don't think anybody was raped or anything.

'Q Gross indecency?

'A It might have been that.

'Q It might have been gross indecency?

'A Yes.

'Mr. Stephan: That's all.'

In People v. Brocato, 17 Mich.App. 277, 302--303, 169 N.W.2d 483, 495 (1969), we said:

'a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant's credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion, United States v. Beno (CA 2, 1963), 324 F.2d 582.'

Both the holding and the reasoning of our Court in Brocato oblige us to reverse the defendant's conviction. The gross indecency charge was not substantiated by a conviction and, therefore, the people were not entitled to bring out on cross-examination that the defendant had been charged with that offense. Defendants who plead guilty to lesser offenses, as well as those who are convicted after a trial of the originally charged offense or of a lesser offense, are entitled to the protection of the Brocato rule. See People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971).*

The defendant's lawyer did not open the door to the impermissible inquiry concerning the original charge by bringing out on direct examination that the defendant had been convicted of indecent liberties. We have rejected the contention that a defendant is deprived of the effective assistance of counsel when his lawyer brings out his prior record on direct examination. See People v. Jelks, 33 Mich.App. 425, 431, 190 N.W.2d 291, 295 (1971), where we said that, '* * * many defense lawyers believe it better to bring this negative information out initially than to let the prosecutor stress it during cross-examination.'

To hold that a defendant's lawyer opens the door by adverting to a defendant's prior...