People v. Peabody
Citation | 194 N.W.2d 532,37 Mich.App. 87 |
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 |
Court | Court of Appeal of Michigan — District of US |
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.
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:
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...
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People v. Holcomb, Docket No. 12719
...Bottany, 43 Mich.App. 375, 204 N.W.2d 230 (1972).17 Cf. People v. Jelks, 33 Mich.App. 425, 190 N.W.2d 291 (1971); People v. Peabody, 37 Mich.App. 87, 194 N.W.2d 532 (1971); People v. Burd, 39 Mich.App. 22, 197 N.W.2d 76 (1972); People v. Budrick, 40 Mich.App. 647, 199 N.W.2d 267 ...
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