People v. Rahar, Docket No. 10147
Decision Date | 18 January 1972 |
Docket Number | No. 2,Docket No. 10147,2 |
Citation | 37 Mich.App. 577,195 N.W.2d 77 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tony RAHAR, true name Anthony Rahar, Defendant-Appellant |
Court | Court of Appeal of Michigan — District of US |
Benjamin F. Gibson, Dunnings & Gibson, Lansing, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and HOLBROOK and VanVALKENBURG, * JJ.
Defendant was tried by a jury and convicted of sale of heroin, contrary to M.C.L.A. § 335.152 (Stat.Ann.1971 Rev. § 18.1122), sentenced to serve not less than 20 years nor more than 30 years in prison, and appeals after a motion for a new trial was denied by the trial court. On appeal, defendant alleges numerous errors committed by the trial court.
The first contention is that it was prejudicial and reversible error for the prosecutor to cross-examine defendant concerning his prior criminal record. By statute, 1 the prosecutor has the right to cross-examine a defendant concerning his prior criminal convictions for the purpose of assisting the jury in determining defendant's credibility, when he testifies as a witness in his own behalf. 2 People v. Finks (1955), 343 Mich. 304, 72 N.W.2d 250; People v. Di Paolo (1962), 366 Mich. 394, 115 N.W.2d 78; People v. Koontz (1970), 24 Mich.App. 336, 180 N.W.2d 202; People v. Cook (1970), 24 Mich.App. 401, 180 N.W.2d 354.
However, even though a prosecutor may, for the purpose of impeachment, cross-examine a testifying defendant with respect to his prior criminal convictions, such cross-examination must be properly conducted. In People v. Di Paolo Supra, the defendant claimed that the prosecutor exceeded the permissible scope of cross-examination, thereby depriving him of a fair trial. In that decision, the Court quoted from the trial record as follows:
'After some further questions relating to defendant's past conduct counsel again referred to the alleged offense in Pennsylvania, and the following occurred:
The Court then ruled as follows:
Di Paolo, supra, 366 Mich. 396, 397, 115 N.W.2d 79.
In the instant case, the defendant took the witness stand to testify in his own behalf. During cross-examination, the prosecutor questioned the defendant as follows:
'Q. Isn't it ture, Mr. Rahar (the defendant), that in 1969 in San Francisco, California, that you were convicted of the charge of possession of restricted dangerous drugs?
'A. No, it is not.
'Q. (defense counsel) Your Honor, may I approach the bench?
'A. The Court: You may.
'(Whereupon both counsel approached the bench and a discussion was held off the record and out of the hearing of the Court Reporter.)
'The Court: We'll excuse the jury to the jury room for just a few moments.'
Then, in the absence of the jury, the trial court permitted the prosecutor to 'explore this line of questioning.' During this 'Separate' hearing, the defendant testified as follows:
'Q. * * * Isn't it true, Mr. Rahar, that in 1969 you were found guilty of receiving--excuse me, of possession of restricted dangerous drugs in San Francisco, California?
'A. No, it is not ture.
'Q. Is it true, Mr. Rahar, that you were arrested on March 8, 1969, in San Francisco, California on a charge of possession of an opium pipe, etc.?
'A. It is true I was arrested on that date, but, not for the charge you just mentioned, an opium pipe.
'Q. Well, is it true, Mr. Rahar, that you were arrested on a charge of possessing restricted dangerous drugs on March 8, 1969?
'A. I was arrested on March 8 for being in the presence of this bust. I was in the room, four people in the room to be exact.
'Q. What ws the penalty?
'A. Penalty? I wasn't convicted of possessing any drugs. I was found guilty of being in an illegal establishment.
'Q. Illegal in what sense? Or don't you recall?
'A. There were drugs present in the establishment. * * *
'Mr. Gibson (defense attorney): * * * Is it true that it was your information that the first charge, possession of dangerous drugs, was stricken from the record or expunged from your file?
'(A.) That's true. The Judge told me in the court room that I was guilty of being in an illegal place because drugs were present and there was no possession charge whatsoever.
'The Witness: I was going to explain the rest, Your Honor, because the Judge made mention of the fact that I was under twenty one and after the time was served my record would be sponged (sic), as she called it, which means it would be taken off my record because of the fact that I was under twenty one.
'The Court: Did you ever come by any sort of a certificate or instrument which would have been executed by a Court in California I assume informing you that the record was expunged? That is to say, it was held to be a nullity, a void? Have you ever received any such instrument as that?
'The Witness: I didn't receive an instrument, I just took it by what the Judge had mentioned to me before I left court.
(Citation added.)
The defendant's counsel objected to the trial court's ruling on the grounds that: (1) the defendant's criminal record was a collateral matter and the prosecutor could not impeach a witness on a collateral matter, and (2) the defendant had already testified that he had not been convicted of possession of restricted dangerous drugs. The trial court responded to defense counsel as follows:
'* * * I think it's the Dellabonda case that says if the accused or the witness when asked, were you convicted, answers no, the attorney asking the question is bound by the answer. But he may then, and I think it's Dellabonda that says, you explore the possibility of perjury. 3
The jury was returned to the court room and the trial court directed the prosecutor to proceed. The defendant then testified as follows:
'Q. * * * Now, Mr. Rahar, is it true that you were found guilty in January of 1969 in San Francisco, California on a charge of possession of restricted dangerous drugs?
A few moments later, the court recessed the trial until the following morning. The next morning, June 4, 1970, the defendant returned to the witness stand and the prosecutor continued his cross-examination. The following testimony was transcribed:
'Q. Now, Mr. Rahar, didn't you say yesterday, when I asked you the question of whether or not you were convicted in San Francisco, California in 1969 on a charge of possession of restricted dangerous drugs, that your answer to my question as the way it was put was no?
'A. That's right. I was not convicted of possession of dangerous drugs.
'Q. Could I assume by that answer that if I asked the question differently that your answer would be...
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People v. Harris
...evidence presented by each side was directly conflicting, witness credibility was crucial to the jury's verdict. See People v. Rahar, 37 Mich.App. 577, 195 N.W.2d 77 (1972). Thus, we cannot say that only harmless error occurred. People v. Foster, 77 Mich.App. 604, 259 N.W.2d 153 (1977), whi......
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State v. Williams
...37 A.D.2d 632, 323 N.Y.S.2d 632 (1971); People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617 (1962); People v. Rahar, 37 Mich.App. 577, 195 N.W.2d 77 (1972). The authorities support A.B.A. Standards for Criminal Justice, The Prosecution Function, § 5.7(d) (Approved Draft, 1971), w......
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