Opinion
Docket No. 18687.
Decided January 28, 1975.
Appeal from Houghton, Stephen D. Condon, J. Submitted Division 3 December 4, 1974, at Lansing. (Docket No. 18687.) Decided January 28, 1975.
Kenneth R. Frantila was convicted of selling LSD. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Sterling W. Schrock, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Edward R. Wilson, III, Director, by William P. Weiner, Special Assistant Attorney General), for the people.
Joseph A. Szeremet, Assistant State Appellate Defender, for defendant on appeal.
Defendant Kenneth R. Frantila was convicted of selling LSD tablets in violation of MCLA 335.341(1)(b); MSA 18.1070(41)(1)(b).
His appeal is primarily based upon the allegedly improper cross-examination of the defendant when he testified at trial and the allegedly inadmissible evidence the prosecution was allowed to introduce through direct testimony to impeach defendant.
During direct examination the defendant was questioned about his military record. He claimed that it was unblemished except for one minor and irrelevant, nonjudicial disciplinary proceeding. During cross-examination, and over repeated objection, the prosecution was allowed to question defendant about whether he had had a serious drug problem in the service which did not result in any arrest or conviction and whether he had admitted the existence of such a problem to the arresting police officer. Defendant denied both contentions. The prosecution subsequently produced the arresting police officer who claimed that defendant had made such an admission. No further evidence was taken on the matter; consequently the existence, nature, and duration of the alleged problem was never explained or proved.
Defendant contends that this line of inquiry constituted an impermissible use of prior bad acts or misconduct for impeachment citing Wilbur v Flood, 16 Mich. 40; 93 AD 203 (1867), and People v Hatt, 384 Mich. 302; 181 N.W.2d 912 (1970). We agree. Michigan law has long held that prior misconduct not amounting to a conviction may not be used to impeach a criminal defendant.
"`This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.'" People v DerMartzex, 390 Mich. 410, 413; 213 N.W.2d 97, 99 (1973), quoting from People v Matthews, 17 Mich. App. 48, 52; 169 N.W.2d 138, 140 (1969).
Such evidence encouraged the trier of fact to find guilt on the basis of past impropriety rather than on the merits of the present case confirming the worst fears of DerMartzex.
In reply, the prosecution does not argue that the evidence was admissible so much as that it was needed in the interests of justice. The prosecution contends that the defendant misrepresented his military experience as problem-free and that it should, therefore, be allowed to put the possible existence of the drug problem in evidence, regardless of whether such evidence would be otherwise admissible, in order to counteract the prejudicial impact of defendant's own misrepresentations. Grist v Upjohn Co, 16 Mich. App. 452; 168 N.W.2d 389 (1969); McCormick, Evidence (2d Ed), § 57, pp 131-133. We do not believe that the defendant was claiming his military career was free of any problems when he stated that he had not been criminally prosecuted while in the military. In any event, whatever minor confusion may have been caused by defendant could hardly be claimed to have had any significant prejudicial effect, and especially not one that required the megatonic countermeasures offered by the prosecution. In truth, the countermeasures were so potent that they undermined defendant's right to a fair trial. A reversal is required.
To avoid repetitious appeals, we further recommend that at the defendant's new trial the prosecution should endorse as a res gestae witness and produce at trial Michael Greenleaf as required by People v Koehler, 54 Mich. App. 624; 221 N.W.2d 398 (1974), and People v Robinson, 390 Mich. 629; 213 N.W.2d 106 (1973).
Reversed and remanded for a new trial.