Opinion
Docket No. 19413.
Decided October 13, 1975. Leave to appeal applied for and by order of the Supreme Court reversed and remanded to the Court of Appeals, 396 Mich ___.
Appeal from Wayne, Michael L. Stacey, J. Submitted June 17, 1975, at Detroit. (Docket No. 19413.) Decided October 13, 1975. Leave to appeal applied for and by order of the Supreme Court reversed and remanded to the Court of Appeals, 396 Mich ___.
Milford L. Scott was convicted of second-degree murder. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Michael R. Mueller, Assistant Prosecuting Attorney, for the people.
James R. Neuhard, State Appellate Defender (Arthur J. Tarnow, of counsel), for defendant.
Before: T.M. BURNS, P.J., and QUINN and M.J. KELLY, JJ.
OPINION OF THE COURT
Defendant was charged with first-degree murder, MCLA 750.316; MSA 28.548. His jury trial resulted in his conviction of second-degree murder, MCLA 750.317; MSA 28.549. He was sentenced and he appeals on ten allegations of error.
One allegation of error is determinative of this appeal and obviates a recitation of the facts. During cross-examination of defendant, the prosecuting attorney was permitted to question defendant about arrests that did not result in convictions. This was reversible error, People v Falkner, 389 Mich. 682; 209 N.W.2d 193 (1973).
In view of the foregoing, we choose not to discuss the remaining issues.
Reversed and remanded.
T.M. BURNS, P.J., concurred.
I do not believe that People v Falkner, 389 Mich. 682; 209 N.W.2d 193 (1973), requires reversal in this case.
The defendant first claims that the prosecutor erred in asking about an arrest for carrying a gun which never occurred. As I view the record, I conclude that the defendant's "rap sheet", i.e., criminal record, showed a conviction for carrying a concealed weapon that the prosecutor understandably, but erroneously, concluded involved a gun. The defendant admitted that he was convicted of carrying a concealed weapon, and that the weapon he was carrying when arrested was a razor. Thus the prosecutor's misconception was quickly corrected:
" Q. You have been arrested and — arrested for carrying a gun?
" A. Carrying a concealed weapon.
" Q. In Cincinnati, Ohio?
" A. Yes — no, I wasn't arrested for carrying a gun. I was arrested for carrying a razor.
" Mr. Bledsoe: Just a moment.
" Q. A razor?
" Mr. Bledsoe: Just a moment.
" The Court: Just a moment.
" Mr. Bledsoe: I'm going to object. Let us have a record.
" Mr. Boak: It is a conviction, your Honor.
" The Court: Let us find out if he has been convicted. Let's get the answer.
"Were you convicted in Cincinnati?
" The Witness: I wasn't convicted of carrying a firearm.
" The Court: All right. That is the answer.
" Q. (By Mr. Boak): You were convicted of carrying a weapon?
" A. A razor.
" Q. Which was a weapon; is that correct?
" A. To go in that in length. I was —
" Q. Well, no. You were convicted?
" The Court: Just answer the question.
" A. I had a razor in my possession, and I was arrested."
I do not believe that Falkner reaches the inadvertent misstatement of the nature of the conviction if, in fact, there is a conviction, and the misstatement was made in good faith. See, e.g., People v Sanders, 394 Mich. 439; 231 N.W.2d 639 (1975), reversing 43 Mich. App. 698; 204 N.W.2d 706 (1972). It should also be noted that, in the case at bar, the defendant, on direct examination, admitted to only one felony conviction when, in fact, he had four.
Furthermore, the effect of this colloquy may have actually been beneficial to the defendant. Without the explanation engendered by the prosecutor's question, the jury might itself have concluded that the weapon carried by the defendant at the time of his arrest was a gun, which was the murder weapon, and not a razor. Certainly, at worst, the questions and answers heard by the jury amounted to no more than harmless error. People v Swan, 56 Mich. App. 22; 223 N.W.2d 346 (1974).
Secondly, defendant argues that error was committed when the prosecutor asked on cross-examination about a charge that did not result in a conviction, an alleged homicide of a police officer.
" Q. Mr. Scott, since we're on the subject of the statement, the police shooting in 1968, you were charged in that crime, were you not?
" A. I was a state witness.
" Q. You were not charged with the crime?
" A. Well, I was supposed — "
Although defense counsel objected, the trial court allowed the question and answer to remain on the record because defense counsel had opened the door to this line of questioning on direct examination. A review of the trial record discloses that defense counsel did, in fact, ask the defendant if he had read a statement made by one Raymond Hunter regarding defendant's connection to the killing of a state police officer, a matter entirely unrelated to the charge in the case at bar. Defense counsel also questioned a state police officer about that portion of Hunter's statement implicating defendant in the police shooting.
Defense counsel's purpose, as revealed in his argument to the jury, was to discredit Hunter, by showing that the police did not follow up on Hunter's lead in the police shooting for six months, thus implying that the police themselves did not give much credence to Hunter's information.
This Court has held that it is not error on cross-examination to inquire into prior arrests where defense counsel first raised and pursued the line of questioning which brought out the prior arrests. See People v Bearden, 29 Mich. App. 416; 185 N.W.2d 438 (1971), People v Buero, 59 Mich. App. 670; 229 N.W.2d 880 (1975). Since the line of questioning which resulted in asking defendant on cross-examination if he had been charged with that particular crime was raised by defense counsel, defendant cannot now claim error.
After reviewing defendant's other allegations of error, I do not believe that any of them mandate reversal. I would affirm the conviction.