People v. Rappuhn, 14
| Decision Date | 20 November 1973 |
| Docket Number | No. 14,14 |
| Citation | 212 N.W.2d 205,390 Mich. 266 |
| Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Gary James RAPPUHN, Defendant and Appellant. 390 Mich. 266, 212 N.W.2d 205, 67 A.L.R.3d 766 |
| Court | Michigan Supreme Court |
L. Brooks Patterson, Pros. Atty., Oakland County by Frank R. Knox, Chief Appellate Counsel, for plaintiff and appellee.
Campbell, Lee, Kurzman & Leitman by Bruce T. Leitman, Bloomfield Hills, for defendant and appellant.
Before the Entire Bench.
Of the numerous issues raised in this case, the one we focus on as dispositive is whether the trial court committed reversible error in allowing the prosecutor, over timely objection, to impeach defendant's credibility by discussing prior arrests of the defendant. Also, we consider whether a prosecutor may attempt to impeach a witness's credibility on cross-examination by questions relating to the duration and details of prior prison sentences.
Defendant was jury convicted of rape (M.C.L.A. § 750.520; M.S.A. § 28.788) and kidnapping (M.C.L.A. § 750.349; M.S.A. § 28.581). The Court of Appeals affirmed the conviction, 25 Mich.App. 62, 180 N.W.2d 900 (1970). We granted leave on July 17, 1972. 387 Mich. 809, 810.
On direct examination Rappuhn testified that in August, 1966 he had been convicted of attempted felonious assault on a plea of guilty. He also admitted three other arrests which led to convictions. (Trial Transcript, p. 629) (52a)
On cross-examination the following occurred (57a):
'Q. You were arrested at that time for kidnapping and felonious assault?
'Mr. Hooe: Objection, your Honor, the only thing that the Defendant has admitted he was arrested and convicted of attempted felonious assault. That's all there is to it.
'The Court: What is the objection; are you just repeating?
'Mr. Hooe: He said something about attempted kidnapping.
'Mr. Davey: I didn't say 'attempted', I said kidnapping.
(Trial Transcript, pp. 636--637)
After much discussion the judge overruled the objection (61a):
'The Court: Well, the Court is going to allow the Prosecutor to inquire as to other arrests of this Defendant. Your objection is on the record.
'You may return the jury.'
and the question about the kidnapping was asked and answered (63a--64a):
'Q. (By Mr. Davey): Have you ever been arrested for kidnapping, Mr. Rappuhn?
'A. Yes, sir.
'Q. And have you ever been arrested for felonious assault?
'A. At the same time, yes, sir.
'Q. The same time as the kidnapping charge?
'Mr. Hooe: Court please, for the record, I'm going to object on the grounds that the Defendant answered the question, he has given the information about the February, 1966, arrest and conviction.
'The Court: Overruled.
'Q. (By Mr. Davey): You were charged with two counts at that time, correct?
'Mr. Hooe: Court please, the same objection.
'The Court: Are you objecting on the grounds it is repetitious?
'Mr. Hooe: Yes, your Honor, and going into the details.
'The Court: He isn't going into the details.
'Mr. Hooe: Pardon?
'The Court: He hasn't gone into details as yet, Counsel, he's just repeating, bringing out the repetition of the answer which you already elicited. It is overruled.
'Q. (By Mr. Davey): For that particular offense you were charged with two counts, is that correct, kidnapping and felonious assault?
'Mr. Hooe: Objection, your Honor.
'The Court: Overruled.
'The witness: Yes, sir.'
(Trial Transcript, pp. 645--646)
The fact that the defendant had been charged with kidnapping, the very offense with which he was charged in this case, was argued to the jury during the prosecutor's final argument:
In the recently decided case of People v. Falkner, 389 Mich. 682, 695, 209 N.W.2d 193, 199 (1973), Chief Justice T. M. Kavanagh speaking for this Court ruled:
'. . . in the examination or cross-examination of Any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by plea or trial.' (Emphasis added.)
In Falkner the credibility of alibi witnesses was impeached by reference to an arrest record. Here it was defendant himself who was impeached by reference to his arrest record. Falkner clearly speaks to the impeachment of any witness by use of an arrest record. Therefore, defendant is entitled to a new trial on the basis of Falkner.
As we stated above, defendant is entitled to a new trial under the rule of Falkner. However, since a new trial is required this Court will address itself to one of the other issues which might arise again at the new trial. That is, may a prosecutor impeach a witness's credibility on cross-examination by questions relating to the duration and details of prior prison sentences.
On direct, defendant did not make any statement as to the length of sentence resulting from his prior convictions to which he did testify. On cross-examination the following exchange took place between the defendant and prosecutor.
'Q. And where had you lived three days prior to this particular crime?
'A. Brighton, Michigan; Howell, Michigan.
'Q. What kind of institution were you living in there?
'A. Camp Brighton Prison Camp.
'Q. You had just been released from prison three days when this crime occurred, is that correct?
'A. Yes sir.
'Q. And what offense were you in prison for at the time you were released?
'A. Attempted felonious assault.
'Q. And what was your sentence, Mr. Rappuhn?
'A. One and a half to two years.
'Q. And how much time did you serve on the one and a half to two years?
'A. Eighteen months.
'Q. Now, have you ever been incarcerated in any other penal institution besides the State Prison Camp at Brighton?
'A. Yes, sir, I was in Michigan Training Unit, Ionia, Michigan.
'Q. What year was that?
'A. 1964.
'Q. And how long were you there?
'A. Approximately ten and a half months.
'Q. And for what offense were you there?
'A. Larceny from an auto.
'Q. And what was your sentence as a result of that conviction?
'A. One and a half to five years.
'Q. How much time did you serve?
'A. Altogether?
'Q. Yes.
'A. Approximately three years.
'Q. And what do you mean 'altogether,' did you serve in a different way; what do you mean by that statement?
'A. I went back as a parole violator on attempted felonious assault.
'Q. You were on parole when that offense occurred, is that correct?
Former Justice now Judge O'Hara in People v. White, 26 Mich.App. 35, 181 N.W.2d 803 (1970) considered this exact issue.
In this case, on cross-examination defendant admitted that he had been convicted. The prosecution then asked:
'Q. And what was your sentence?
'Mr. Evans (defendant's counsel): I'll object to that as being immaterial, your Honor.
'The Court: The sentence?
'Mr. Evans: Yes.
26 Mich.App. 35, 38--39, 181 N.W.2d 803, 805.
The Court of Appeals held that the introduction of the length of defendant's prior sentence was reversible error.
We agree with Judge O'Hara's analysis and reasoning, which he pithily set forth as follows:
'. . . It is the prior conduct undertaken by the accused and not the ensuing punishment, which is relevant. Moreover, sentences for the same offense often vary from tribunal to tribunal and from judge to judge.
26 Mich.App. 35, 39--40, 181 N.W.2d 803, 805--806. 1
The length of sentence, the conditions under which served and so on, as Judge O'Hara observes, are not defendant's conduct but an uncertain sequel. It is defendant's conduct that is relevant and by which his credibility may be tested. We therefore hold that it is error to cross-examine defendant as to the duration and details of his prior prison sentences to test his credibility. 2
We are not unmindful on the one hand of People v. Kotek, 306 Mich. 408, 412, 11 N.W.2d 7, 9 (1943) where we implied that the use of a previous prison sentence to impeach defendant's credibility would have been reversible error had the reference to the sentence been made in the presence of the jury. We, however, prefer to base our decision on the factual precedent of White and Judge O'Hara's reasoning.
We are not unmindful on the other hand of the traditional leading cases of Wilbur v. Flood, 16 Mich. 40 (1867) and Clemens v. Conrad, 19 Mich. 170, 174 (1869). These cases, however, deal not with questions of the duration and details of prior prison...
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