Opinion
Docket No. 14304.
Decided August 28, 1973.
Appeal from St. Clair, Halford I. Streeter, J. Submitted Division 2 June 20, 1973, at Lansing. (Docket No. 14304.) Decided August 28, 1973.
Jimmy L. McMillan was convicted of second-degree murder. Defendant appeals. Reversed and remanded for new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Walter W. Turton, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.
Richard S. McMillin, Assistant State Appellate Defender, for defendant.
Defendant was charged, in an information filed on January 4, 1972, with first-degree murder, MCLA 750.316; MSA 28.548, in the beating death of his seven-year-old adopted son. The child was beaten on November 5, 1971, and died the following day of an acute subdural hematoma. The people's case was based wholly on circumstantial evidence, there being no eyewitnesses to the alleged crime. The defense filed a notice of alibi defense on February 1, 1972, pursuant to MCLA 768.20; MSA 28.1043. In that notice, defendant averred that, on November 5, 1971, he was away from his residence between the hours of 5 p.m. and 11:15 or 11:30 p.m., and that, upon arriving home, he found his son in an unconscious condition, unsuccessfully attempted to revive him, and thereafter obtained medical aid for the youngster. At the conclusion of proofs at trial, the court decided not to submit the issue of first-degree murder to the jury for lack of sufficient evidence of premeditation. On March 5, 1972, the jury found defendant guilty of second-degree murder, MCLA 750.317; MSA 28.549, and a judgment of conviction was accordingly entered. On April 19, 1972, appellate counsel was appointed to represent defendant in post-conviction proceedings. This appeal followed.
Although defendant has raised a number of issues in this Court, we think it necessary to deal only with one, i.e., whether the trial court committed reversible error by allowing the prosecutor to impeach the credibility of a defense witness through the use of testimony concerning prior arrests which did not result in convictions.
One of the witnesses called by the defense testified, on direct examination, that he had been with the defendant at approximately 7:30 p.m. on the night the victim was beaten. The prosecution's cross-examination of that witness, in its entirety, was as follows: "Q. [by prosecution]: Have you ever been arrested?
"A. Oh, yes.
"Q. What for?
"[Defense counsel]: Are these questions proper, your Honor?
"[Prosecution]: As to a witness, I think so.
"A. I was picked up —
"[Defense counsel]: Are you ruling on that objection, your Honor?
"The Court: I will allow him to answer.
"A. I was picked up, on a C.C.W.
"Q. And what else?
"A. And a breaking and entering.
"Q. What about rape?
"A. I wasn't picked up on that until just now.
"Q. Not until just now?
"A. Yes.
"[Prosecution]: That's all."
In People v Brocato, 17 Mich. App. 277, 302-303; 169 N.W.2d 483, 495-496 (1969), this Court stated:
"We now hold that a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant's credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion. United States v Beno (CA 2, 1963), 324 F.2d 582."
Subsequently, in People v James, 36 Mich. App. 550, 559-560; 194 N.W.2d 57, 62 (1971), we extended the Brocato holding to the impeachment of a defense witness, noting:
"The reasoning of our Court in Brocato applies with equal force in the case of a witness who is not a defendant; a distinction in this regard between the defendant and one of his witnesses cannot reasonably be drawn. Since the trier of fact is more likely to credit the testimony of disinterested third persons than the testimony of a keenly interested defendant, the defendant in many cases will be more dependent on the evidence offered by others than on his own testimony."
See also Cachola v The Kroger Co, 32 Mich. App. 557; 189 N.W.2d 112 (1971), leave to appeal denied, 385 Mich. 775, and compare People v Sesson, 45 Mich. App. 288; 206 N.W.2d 495 (1973).
There can be no doubt that the prosecutor's cross-examination of the defense witness in this case was improper under James, supra. In light of the fact that the entire cross-examination consisted of improper inquiry regarding the witness's arrest record, any claim of inadvertence is without merit. Further, the error was properly preserved by a specific and timely objection and we are unable to conclude, beyond a reasonable doubt, that the error did not contribute to the jury's verdict. The trial court's allowance of the improper cross-examination was reversible error.
Our disposition of the above issue renders unnecessary consideration of defendant's remaining contentions which may not arise again during retrial.
Reversed and remanded for a new trial.
All concurred.