People v. Westbrook
| Decision Date | 28 April 1989 |
| Docket Number | Docket No. 102426 |
| Citation | 175 Mich.App. 435,438 N.W.2d 300 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Franklin Delano WESTBROOK, Defendant-Appellant. 175 Mich.App. 435, 438 N.W.2d 300 |
| Court | Court of Appeal of Michigan — District of US |
[175 MICHAPP 436] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Graham K. Crabtree, Asst. Pros. Atty., for the People.
James A. Carlin, Southfield, for defendant-appellant on appeal.
Before MICHAEL J. KELLY, P.J., and GRIBBS and WASHINGTON, * JJ.
Following a two-day jury trial, defendant was convicted on March 6, 1987, of larceny over $100, M.C.L. Sec. 750.356; M.S.A. Sec. 28.588. Defendant pled guilty to being an habitual offender, third offense, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. On April 16, 1987, defendant was sentenced to one year imprisonment in the Oakland County Jail, with daytime work release. Defendant appeals his convictions as of right. We reverse.
[175 MICHAPP 437] At trial, prosecution witness Linda Lane testified that she and her two children were in their automobile in the Withington parking lot, located in the City of Ferndale, on August 25, 1986. While driving through the parking lot, Lane heard a rolling sound. She then saw a man rolling a hub cap towards an older, powder-blue automobile. The witness saw the man place the hub cap in the back seat of the car. A second individual was seated in the driver's seat. Later, Lane observed the same powder-blue car in a parking lot across the street. She advised the Ferndale Police Department of the situation. Both defendant, the driver of the vehicle, and Robert Lee Smith, alias William Tucker, the passenger, were arrested for larceny over $100.
Smith testified at trial that he had previously pled guilty for stealing the hub caps in question. Smith testified that defendant was not involved in the theft. Defendant testified that he was shopping in Ferndale while Smith remained in the car and that he had no knowledge that Smith was stealing hub caps.
On appeal, defendant argues that the prosecutor denied defendant a fair trial by questioning defense witness Smith concerning three prior arrests which had not culminated in convictions. On cross-examination, over defense objection, the prosecution questioned Smith about a 1965 arrest for rape, a 1985 arrest for attempted unlawful driving away an automobile in Warren, and an unlawful driving away an automobile arrest in Detroit. It is well settled that the use, for impeachment purposes, of evidence of an arrest not resulting in conviction is erroneous. See People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973); Lenzo v. Maren Engineering Corp., 132 Mich.App. 362, 365, 347 N.W.2d 32 (1984); MRE 608(b). Here, we find the prosecutor's cross-examination to have been improper. [175 MICHAPP 438] As it was the prosecution's theory that defendant assisted Smith in committing the crime, the evidence pertained to a substantive issue in the case--Smith's credibility--thus the error cannot be considered harmless. See Lenzo, supra. On this ground, we reverse and remand for a new trial.
Defendant also challenges the propriety of the prosecutor's conduct when defendant was asked on cross-examination why he elected to remain silent at the time of his arrest, rather than express his innocence. Defendant argues that an accused has no obligation to profess his innocence to police upon arrest and that the prosecutor's questioning on defendant's failure to do so violated defendant's right to remain silent. See People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973). We agree.
On cross-examination, the prosecutor first questioned defendant whether he made any statement to the police at the time of his arrest. Defendant indicated that he did not. The prosecutor established that defendant was placed in the police car and taken to the police department where, later that day, defendant was again questioned by police:
[175 MICHAPP 439] "A. No. What for, Mr. Prosecutor?
[175 MICHAPP 440] "Q. Did it occur to you to tell the officers at that point that the individual that you were with was the person who was responsible for stealing the hubcaps?
Where a defendant chooses to exercise his right to silence, that silence may not be used against him at trial. People v. Bobo, supra; People v. Jones, 168 Mich.App. 191, 193, 423 N.W.2d 614 (1988). The rule is designed to prevent a jury from drawing an inculpatory inference from a defendant's silence during police interrogation. Jones, supra, p. 194, 423 N.W.2d 614. Where, as here, a defendant fails to raise a proper objection at...
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People v. Layher
...a witness' credibility. See, e.g., People v. Yarbrough, 183 Mich.App. 163, 164-165, 454 N.W.2d 419 (1990); People v. Westbrook, 175 Mich.App. 435, 437, 438 N.W.2d 300 (1989); Scott v. Hurd-Corrigan Moving & Storage Co., Inc., 103 Mich.App. 322, 343, 302 N.W.2d 867 (1981); People v. Torrez, ......