PEOPLE
v.
JOHNSON
Docket No. 55089, (Calendar No. 5).
Supreme Court of Michigan.
Argued October 8, 1974. Decided April 7, 1975.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, E. Brady Denton, Prosecuting Attorney, and Daniel R. Connell, Chief Appellate Attorney, for the people.
State Appellate Defender Office (by Marc L. Goldman), for defendant on appeal.
WILLIAMS, J.
This opinion indicates that trial court discretion is abused in permitting prosecutorial cross-examination and argument tending to show (1) that a jury may consider defendant's poverty and unemployment in deciding whether or not he is guilty of carrying a concealed weapon (CCW) and (2) that defendant because of his poverty and unemployment was about to employ three loaded weapons in the car occupied by him to commit a crime of violence, when the only crime charged was CCW.
While defendant in the instant case raises a number of other allegations of error in this appeal, it is only these issues which spur our decision *492 today. We express no opinion on other issues raised by the parties not necessary to our decision.
The Court of Appeals is reversed. This cause is remanded for new trial or other proceedings not inconsistent with this opinion.
I FACTS
On October 10, 1971, at dusk, Officer Logan Tisdale of the Michigan State Police, in the course of his patrol duties, observed a 1965 Pontiac with one inoperative taillight proceeding westbound on M-81 in Saginaw, Michigan. Trooper Tisdale turned his patrol car around, gave chase, and quickly stopped the offending vehicle. As the Trooper approached the car after the stop, he noticed a TV set resting on the back seat.
While in the process of checking the driver's license and car registration, the beam of the trooper's flashlight fell upon a pistol partially hidden behind defendant Johnson's left foot. Johnson was sitting in the passenger seat of the Pontiac. Thereupon, defendant and the driver, Leroy Reed, were ordered out of the car at gunpoint, arrested, frisked, handcuffed to one another and placed in the rear of the patrol car. While accomplishing this task, Trooper Tisdale confiscated the weapon, a .38-caliber Smith & Wesson top-break, he had observed behind defendant's foot.
The trooper then radioed for assistance and for a wrecker. When a second State Police car arrived, the arresting trooper returned to the stopped automobile to remove the television set. In accomplishing that endeavor, Trooper Tisdale discovered under the front seat of the Pontiac two additional weapons, a .32-caliber automatic and a .38-caliber *493 Smith & Wesson side-break snub-nosed revolver. Both of these pistols were eventually confiscated.
Defendant was charged with the crime of carrying a concealed weapon. MCLA 750.227; MSA 28.424. A pretrial motion to suppress the weapons was denied by the trial court.
At trial, only two witnesses were called to the witness stand: Trooper Tisdale and defendant Johnson. The prosecutor's cross-examination of defendant concentrated nearly exclusively[1] on defendant's background and alleged predisposition to criminal activity. The cross-examination included reference to:
his employment and education record:
"Q. Where were you working on the tenth of October?
"A. I wasn't working.
"The Court: Will you talk louder please, and answer louder?
"Witness: I wasn't working.
"Mr. Webber [assistant prosecuting attorney] (Con't.):
"Q. Where are you working today?
"A. I am not working.
"Q. How long has it been since you held a job?
"Mr. Geyer [defense counsel]: Your Honor, I am going to object to this line of questioning. I think it is immaterial whether Mr. Johnson is working to the charges here against him.
"Mr. Webber: This is cross-examination.
"The Court: Yes, he's the defendant and the jury is entitled to know something about him and the objection will be overruled. You may proceed.
"Mr. Webber (Con't.):
"Q. When is the last time you have worked, Mr. Johnson?
*494 "A. I did some work with my cousin.
"Q. You did what?
"A. Odd jobs with my cousin.
"Q. When was that?
"A. That was a couple of months, about three months ago the last time.
"Q. Well, let me ask you this, how far did you go in school?
"A. I graduated.
"Q. Graduated from high school?
"A. Yes.
"Q. Did you get a job upon graduating or going into the military or what?
"A. I got a job before I graduated.
"Q. Where were you working?
"A. At the Chevrolet garage.
"Q. How long did you work there?
"A. Seven years.
"Q. I can't hear you, sir.
"A. Seven years.
"Q. And why did you terminate that employment?
"A. Because of my health.
"Q. What was wrong with your health?
"A. My lungs.
"Q. Were you fired from your job?
"A. No, not really.
"Q. Did you quit voluntarily?
"A. I was off sick, yes.
"Q. You failed to report for work?
"A. Yes, you can say that.
"Q. Did you hold any other jobs since then, Mr. Johnson?
"A. Not steady."
his marital status, means for supporting his children, and financial history:
"Q. * * * How do you support yourself?
"A. How do I support myself?
*495 "Q. Are you married?
"A. Yes.
"Q. Are you living with your wife?
"A. No.
"Q. Are you paying any child support on your children?
"A. Yes.
"Q. How many?
"A. Two.
"Q. Tell us how you support yourself?
"A. I receive a set amount from the Chevrolet."
his past conviction for uttering and publishing and present probationary status:
"Q. Now, back in July of '70 you were convicted of uttering and publishing, is that correct?
"A. Yes.
"Q. You're on probation today for that offense, are you not?
"A. Yes."
Defense counsel had earlier raised the matter of the uttering and publishing conviction on direct examination but had not touched upon defendant's current probationary status.[2]
The prosecutor continued his focus on defendant in his closing argument, where he argued, inter alia:
"Consider the fact too, that the defendant had two cents in his pocket at the time he was arrested. Now, what are the proofs, you tell me. Think about it. There's a man with two cents in his pocket and he hasn't worked for a long time, there's three guns, three *496 fully loaded weapons in the vehicle. That is something that you can consider when you decide whether or not this defendant committed this particular violation." [Emphasis added.]
Defendant was jury-convicted of carrying a concealed weapon and was sentenced to a term of 2-1/2 to 5 years in prison. The Court of Appeals affirmed. 48 Mich. App. 50; 209 NW2d 868 (1973). We granted leave to appeal on January 28, 1974. 391 Mich. 764.
II PROSECUTORIAL QUESTIONING AND ADVICE THAT JURY CAN CONSIDER DEFENDANT'S POVERTY AND UNEMPLOYMENT IN DETERMINING CCW GUILT IS IMPROPER AND ERRONEOUS
In the prosecutor's argument quoted above, the prosecutor said in effect:
"[Y]ou can consider when you decide whether or not this defendant committed this particular violation [CCW] * * * [that he is] a man with two cents in his pocket and he hasn't worked for a long time * * *."
Obviously neither poverty nor unemployment is an element of the crime of carrying a concealed weapon. Either a poor man or a rich man may be either guilty or innocent of carrying a concealed weapon. Likewise whether a man is employed or unemployed is no proof or partial proof of carrying a concealed weapon. Neither does defendant's poverty or unemployment affect his testimonial credibility in this case. In short, these things neither in law nor in logic are evidence of defendant's guilt or innocence or his tendency to lie or tell the truth. To assert otherwise is to argue a non sequitur.
*497 Consequently this argument and advice to the jury by the prosecutor is erroneous and patently prejudicial.[3] And in this connection so is the cross-examination leading up to this argument and advice.
III PROSECUTORIAL QUESTIONING AND ARGUMENT SUGGESTIVE DEFENDANT WAS EN ROUTE TO COMMITTING VIOLENT CRIME NOT CHARGED IMPROPER AND ERRONEOUS
The prosecutor's argument quoted above and the bulk of his cross-examination attempted to create in the minds of the jury the belief that defendant because of his poverty and unemployment plus the possession of three loaded weapons was en route to committing a robbery armed or some such crime. That this is what the prosecutor was about is clear on the face of the record and is reinforced by the following reaction of the trial judge, who noted in the sentencing proceedings:
"It looked as if you were on the way to commit another crime."
We will not condone the prosecutorial effort to "prove" commission of an uncharged, unrelated "Crime X" in order to gain defendant's conviction of "Crime Y". This is far from a novel proposition in Michigan.[4] Eighty-five years ago, this Court held unequivocally:
*498 "Whatever latitude is proper in cross-examination to test veracity, it cannot properly introduce independent issues against the person who is both witness and respondent." People v Pinkerton, 79 Mich. 110, 114; 44 N.W. 180 (1889).
Likewise, the prosecutor may not allude to such proscribed issues in closing argument.
The passage of 85 years has not disturbed the validity of this maxim of evidentiary trial practice in the slightest. As recently as last year, we reaffirmed this proposition even where the witness is not a criminal defendant. People v Whalen, 390 Mich. 672, 683-687; 213 NW2d 116 (1973). See also: People v Wright, 294 Mich. 20, 27-30; 292 N.W. 539 (1940), and citations contained therein; and 1 Gillespie, Michigan Criminal Law & Procedure, § 442, p 548.
After scrupulous review of the record in this case, we find it undeniable that defendant's analysis of the courtroom atmosphere created by the prosecutor is correct:
"It is obvious that the cross-examination of Appellant was designed to create in the minds of the jury the inference that was later explicitly articulated by the prosecutor. The inference is as follows: An impoverished, unemployed man is found in a vehicle which also contained three guns. Having no money and no job, he is obviously on his way to commit a crime. He therefore must have known that the weapons were in the vehicle."
IV CONCLUSION
Whether defendant was rich or poor, employed or unemployed, has nothing to do with guilt in the instant case nor do allegations and insinuations of potential predisposition to commit a forcible crime *499 against persons or property go to proving the charged offense of carrying a concealed weapon.
That is not to say, however, that the trial court does not have considerable discretion in ruling on the relevance and materiality of argument coming before it. Clearly, the trial court has broad discretion in exercising its judgment whether a particular line of inquiry or argument is to be allowed before the jury.[5]People v Dye, 356 Mich. 271, 277; 96 NW2d 788 (1959). Yet there is an obvious limit to the exercise of such discretion in cases of abuse. People v Dye, supra, 277.
In the instant case, the trial court did indeed abuse its discretion in allowing the prosecutor free rein to cross-examine defendant (and to subsequently refer to such cross-examination in closing argument) through inquiries designed to demonstrate a causal connection between extraneous matters and guilt on the charge of carrying a concealed weapon, and through his attempt to convict defendant of the charged offense by means of persuading the jury that defendant was on his way to commit an altogether unrelated offense.
It is the duty of the courts to keep prosecutorial "character" examination "within reasonable bounds." People v Gotshall, 123 Mich. 474, 483; 82 N.W. 274 (1900). The instant case well illustrates the necessity for such constraint.
*500 We hold that the cross-examination of defendant in the instant case, and the subsequent prosecutorial reference thereto in closing argument, were prejudicially and reversibly erroneous. The trial court abused its grant of discretion in the instant case by allowing such irrelevant matters to be brought to the jury's attention.
The Court of Appeals is reversed. This cause is remanded for new trial or further proceedings not inconsistent with this opinion.
T.G. KAVANAGH, C.J., and T.M. KAVANAGH, SWAINSON, and LEVIN, JJ., concurred with WILLIAMS, J.
M.S. COLEMAN, J. (dissent).
Whether poor or not, defendant sat on the front passenger side of an automobile with two pistols by his feet. On the floor by the back seat was another pistol and a small bottle apparently containing cocaine. On the back seat of the car was a television set. He was charged with carrying a concealed weapon of which offense he was clearly guilty.
For the reasons set forth in the opinion of Court of Appeals Judge DANHOF in 48 Mich. App. 50; 209 NW2d 868 (1973), I would affirm the conviction.
J.W. FITZGERALD, J., concurred with M.S. COLEMAN, J.
NOTES
[1] All told, the prosecutorial questioning of appellant other than that which focuses on appellant's background and predisposition, constitutes only about one page of total testimony.
[2] The prosecutor also questioned defendant about an alleged past nonsupport conviction not earlier raised by defense counsel. Due to our disposition of this matter today, there is no need to reach the issue of the propriety of impeachment through use of past conviction record. Cf. People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974).
[3] We note as well that had the reference to defendant's probationary status, and the subsequent reference thereto made in closing argument, been made in a trial taking place on or after November 20, 1973, such impeachment would have been clear error under People v Rappuhn, 390 Mich. 266; 212 NW2d 205 (1973), decided that date.
[4] Nor is it novel in other jurisdictions. See as recent examples: State v Beyor, 129 Vt 472; 282 A2d 819 (1971), and People v Liapis, 3 Ill App 3d 864; 279 NE2d 368 (1972).
[5] Appellee also argues that failure to request a curative instruction bars consideration on appeal of the "prejudicial propensity" of its line of questioning. Appellee cites for this proposition People v Humphreys, 24 Mich. App. 411; 180 NW2d 328 (1970); People v Majette, 39 Mich. App. 35; 197 NW2d 78 (1972); and People v Sesson, 45 Mich. App. 288; 206 NW2d 495 (1973).
Critical to the line of cases cited supra, was the absence of objection on the part of defense counsel, a factor not found in the instant case. At any rate, we are not persuaded that the "prejudicial propensity" of the improper questioning and argument in the instant case could have been eliminated no matter the amount of cautionary instruction. Humphreys, supra, 415.