People v. Walker, Docket No. 77-1350
| Decision Date | 02 October 1978 |
| Docket Number | Docket No. 77-1350 |
| Citation | 272 N.W.2d 222,86 Mich.App. 155 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Lewis WALKER, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State App. Defender by Kim Robert Fawcett, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.
Before ALLEN, P. J., and CYNAR and FREEMAN, * JJ.
Defendant Henry Lewis Walker was convicted by a jury of breaking and entering an occupied dwelling, M.C.L.A. § 750.110; M.S.A. § 28.305. He was sentenced to 3 to 15 years imprisonment and appeals as of right.
In the early morning of November 22, 1975, Barbara Walker (no relation to defendant) was awakened by her barking dog. She looked out the window of her house on North Dwight Street in Jackson, Michigan, and observed three men approach the back door of the house next to hers, that of Pamela Matthes, and look in the window. She called the police. She then saw the three men go around to the front of the house. At that point they were no longer in view. She heard glass breaking. Pamela Matthes was not home at the time.
Officers Michael Brunk and Moses Lewis of the Jackson Police Department arrived at the scene at the same time. Officer Brunk heard a door open and close quickly in the front of the house. Officer Lewis positioned himself in front of the house at the southwest corner. Officer Brunk went around back, to the northwest corner of the house where he saw a rear door open. He ordered whoever was in the house to come out. No one came out; the door closed.
Meanwhile, a third policeman, Officer Roger Ramirez, arrived. Officer Ramirez checked the garage and the southeast basement window. He noted that the window was secure. He stationed himself near the northeast corner of the house. He observed a second door in the rear of the house open and the silhouette of a person inside. Then Officer Brunk again ordered whoever was inside the house to come out. No one came out.
Officer Ramirez then heard noises coming from the southeast side of the house. He saw defendant walking down the driveway toward the street and arrested him. He noted that the southeast basement window, which had been secure when he arrived, was now broken at the hinges. There was access from the first floor of the house to the basement.
After defendant was arrested, Officer Brunk entered the house. He found that a window pane in the front door was broken and that fragments of glass had fallen into the house. It was possible to reach through the broken pane and unlock the door from the inside. The house was in disarray. Pamela Matthes testified that she did not leave the house in such a state of disorder. Officer Brunk found a television, a vacuum cleaner and a stereo amplifier and speaker stacked near the front door. A search of the house failed to turn up additional suspects.
Defendant testified in his own behalf. He stated that on the night in question he had been on his way to a motel with a girlfriend; that he had been riding in her car; that they had had an argument; and that she had ordered him out of the car on Dwight Street. While walking down the street, he had noticed the commotion around the Matthes house and walked halfway up the driveway. After he had turned around and started to leave, he was arrested.
On cross-examination, the prosecutor asked defendant whether anything was found on his person when he was searched after his arrest; defendant replied in the negative. Yet, the prosecutor persisted and, although defendant denied over and over again that anything but cigarettes and matches had been discovered, asked if a syringe had been found in defendant's pocket; defendant replied in the negative. Still, the prosecutor doggedly pursued this line of questioning. Eventually, he asked defendant if he had been taking any drugs during November of 1975; defendant replied in the negative. Here again, the prosecutor persisted and eventually asked defendant if he had told a police detective who questioned him that he had been using heroin during this period; defendant replied in the negative. Defense counsel finally objected on the ground of relevancy and asked that the testimony be stricken. 1 The prosecutor argued that drug usage went to the issue of motive. The trial court overruled the objection. The prosecutor continued, finally asked defendant if he hadn't stated to the police detective that he had used a drug four days before the offense; defendant replied in the negative. Defendant asserts that this line of questioning denied him a fair trial. We agree.
In affirming a defendant's conviction for armed robbery, this Court held in People v. Talaga, 37 Mich.App. 100, 103, 194 N.W.2d 462, 463 (1971):
(Emphasis added.)
We accept this statement as a general proposition of law applicable in cases involving larceny 2 and recognize that other acts of the defendant which tend to show his motive may be proved notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. M.C.L. § 768.27; M.S.A. § 28.1050; People v. Wilkins, 82 Mich.App. 260, 266 N.W.2d 781 (1978). Cf. People v. Mullins, 79 Mich.App. 515, 261 N.W.2d 67 (1977). However, this does not dispose of the case before us.
The people did not introduce one shred of evidence in their case in chief that defendant was a heroin addict at the time of the offense. Although Officer Lewis, who searched defendant at the police station, testified, he was not asked whether he found a syringe. 3 Further, the police detective to whom defendant allegedly made the statement that he had used a drug 4 days before the offense was not endorsed and called to testify.
We acknowledge the people's right to attempt to elicit evidence of heroin addiction from a defendant should he elect to testify and we in no way impugn this prosecutor's good faith in broaching the subject on cross-examination here. Cf. People v. Ball, 33 Mich.App. 288, 189 N.W.2d 816 (1971). However, evidence of heroin addiction has a strong tendency to inflame the jury. The people must, therefore, proceed in this area with discretion and make every reasonable effort to avoid undue prejudice to a defendant. Here, the prosecutor's attempt to elicit evidence of heroin addiction from defendant failed utterly. Defendant categorically denied that the police had found a syringe when they searched his person, and denied that he had, or had stated to the police that he had, used a drug during the period preceding the offense. Although the record is, therefore, devoid of such evidence, the prosecutor, by the way he framed his questions and through pointless repetition of the questions, underscored his personal disbelief of defendant's testimony and encouraged the jury to draw an inference contrary to the unrebutted evidence. We can not condone such a practice. The tactic is all the more intolerable because motive, strictly speaking, is not an element of the crime that the people must prove; and "(t)he motive for a theft offense seldom requires explanation". People v. Henderson, 80 Mich.App. 447, 454, 264 N.W.2d 22, 25 (1978). We hold that defendant was denied a fair trial and reverse his conviction.
Our disposition of the case renders unnecessary a discussion of defendant's other two allegations of error.
REVERSED and REMANDED.
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