People v. Ruppuhn

• Decision Date: 26 June 1970
• Docket Number: Docket No. 8371,No. 2,2
• Citation: 180 N.W.2d 900,25 Mich.App. 62
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary James RUPPUHN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 900

180 N.W.2d 900

25 Mich.App. 62

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary James RUPPUHN, Defendant-Appellant.

Docket No. 8371.

Court of Appeals of Michigan, Division No. 2.

June 26, 1970.

Released for Publication Nov. 20, 1970.

Parvin Lee, Jr., Campbell, Lee, Kurzman & Leitman, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and VAN DOMELEN, ^* JJ.

R. B. BURNS, Presiding Judge.

Defendant was convicted by a jury of rape ¹ and kidnapping. ²

Complainant was with a group of hitchhiking girls picked up by the defendant. The other girls escaped from the truck but the complainant failed in her attempt to escape.

Defendant and complainant had sexual intercourse. Defendant maintained the complainant consented to the act while she testified that the defendant forced her to submit to the act.

Defendant raised several issues on appeal which he claims constituted error requiring a new trial.

Defendant claims the court erred by allowing the prosecution to question him concerning previous arrests that did not result in convictions. The trial court relied on People v. Foley (1941), 299 Mich. 358, 300 N.W. 119, and People v. Hoffman (1965), 1 Mich.App. 557, 137 N.W.2d 304.

In People v. Brocato (1969), 17 Mich.App. 277, 169 N.W.2d 483, Judge John Gillis who concurred in People v. Hoffman, Supra, confessed that he was wrong, had misread People v. Foley, Supra, and held that a prosecutor could not ask a defendant about arrests not resulting in convictions to impeach a defendant's credibility. He pointed out that the Supreme Court in the Foley case allowed questions asked of arrests not resulting in convictions to impeach the defendant's direct testimony, not to impeach her credibility.

However, the Hoffman Case allowed the prosecutor to ask such questions to impeach the defendant's credibility. This trial took place prior to the decision in the Brocato case and the trial judge had a right to rely on People v. Hoffman, Supra.

We must now decide whether or not Brocato should be applied retroactively to trials completed before the date of the decision.

In Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court enumerated the criteria it would use in deciding on retroactivity: (a) the purpose to be shown by the new standard; (b) the extent of the reliance by law enforcement authorities on the old standards; and (c) the effect on the administration of justice of a retroactive application of the new standard.

The United States Supreme Court has given retroactive effect to its decisions where the integrity of the fact finding process itself was in question. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (right to counsel at trial); Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (involuntary confessions inadmissible); and Roberts v. Russell (1968), 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (retroactive application of Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, in which admission of codefendant's extra judicial confession against other codefendant was held to violate the right of confrontation).

The United States Supreme Court did not give retroactive effect to its decisions where such rulings would seriously disrupt the administration of the criminal laws. In Johnson v. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Court refused to apply Miranda and Escobedo retroactively. In Stovall v. Denno, Supra, the Court refused to apply United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and held Wade was to apply only to confrontations after the date of the Wade ruling because 'today's rulings were not foreshadowed.'

Hoffman was the law before Brocato and was relied on by the trial court. Brocato affects trial procedure and will apply only to those trials which commenced after the date of this Court's decision in the case.

Defendant claims the prosecutor committed error when he commented upon the defendant's character when the defendant did not place his character in evidence. The transcript of the final arguments shows that the prosecution did not attack the character of the defendant on his first argument. On rebuttal, after the defense had raised the issue as to whom the jury should believe and had attacked the credibility of the prosecution witnesses, the prosecutor said:

'First of all, the testimony of the defendant indicates that here is a man who has been in difficulty with the law before. Now, that doesn't mean just because he's been convicted of criminal offenses before that he's guilty of this crime, but you have to take that into consideration in judging his believability, his credibility.'

The prosecution proceeded to read his record to the jury. The defendant put his credibility in issue and the court did not err in permitting the prosecutor to comment on the defendant's record.

Defendant also claims the court erred when it allowed the prosecutor to mention, during closing argument, matters not in evidence.

During the closing arguments the prosecutor mentioned the complainant's hairpiece, and blood found at the scene of the alleged rape. While the hairpiece was not entered into evidence there was testimony concerning the hairpiece as there was testimony concerning the blood at the scene. These remarks did not prejudice the defendant's right to a fair trial. See People v. Green (1967), 7 Mich.App. 346, 151 N.W.2d 834.

Defendant claims the trial court erred when it permitted the arresting officer to testify as to a statement made by the defendant after the defendant had declined to make any statements. On direct examination the officer testified:

'Q. And what happened then? (After defendant was advised of his rights and stated he did not want to answer any questions then).

'A. Well, nobody spoke for a few miles and finally I told Gary, I said, 'I have a cigarette lighter and a pair of prescription trifocal glasses that one of the girls gave me that jumped out of the truck,' and he said the lighter was his and the glasses were his father's.

'Q. All right, then what happened?

'A. Well, we was quiet for awhile, then Gary asked if I thought he needed psychiatric help, I said, 'I don't know, I would have to confer with the prosecutor."

The statement was volunteered by the defendant to the arresting officer,...