PEOPLE
v.
JOHNSON.
Docket No. 2,750.
Michigan Court of Appeals.
Decided August 28, 1968. Leave to appeal granted February 19, 1969.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Vincent F. Stapley, Assistant Prosecuting Attorney, for the people.
William F. Goler, for defendant.
T.G. KAVANAGH, J.
Roger Johnson, while at Jackson state prison, was charged with the murder of Frank Clark, a fellow inmate, on October 24, 1965. The defendant does not deny that he stabbed Clark, but he claims that he acted in self-defense.
*71 The jury found Johnson guilty of murder in the second degree.[1] The appeal lists 6 asserted errors, 3 dealing with the court's ruling on objections to the introduction of evidence and 3 with the claim of improper argument by the prosecutor.
The record shows that on cross-examination defendant was asked whether he "characterized" himself as a calm man or an excitable one, and he replied:
"I characterize myself as being calm"
At that point, the assistant prosecutor elicited testimony regarding recorded infractions of prison rules, arguments, fights and disturbances in which defendant was involved.
Two approaches have been taken to establish the admissibility of this evidence.
The prosecutor argued before the trial court, in response to objection by defense counsel, that incidents of prior misconduct were admissible to show defendant's "disposition toward violations and his entire mannerisms."
On appeal, prosecutor contends that as defendant had characterized himself as a calm man, evidence of prior belligerent misconduct served to test credibility.
As we view it, whatever the reasons advanced, it was improper to admit such evidence.
The argument offered on appeal must fail. The character of a defendant cannot be attacked unless he first puts it in issue by offering evidence of his good character. Defendant's response on cross-examination can in no way be treated as having put his character in issue and, consequently, no rebuttal of good character was in order. See People v. Boske (1922), 221 Mich. 129. Furthermore, had defendant *72 put his character in issue, it is still error to introduce specific acts of misconduct to prove a bad character. People v. Hill (1932), 258 Mich. 79. The prosecutor cannot use a statement of self-characterization, cleverly elicited on cross-examination of defendant, as a springboard to reach every prior incident of misconduct, under the guise of testing credibility. On this theory, the evidence was inadmissible.
The prosecutor's explanation before the trial court that such evidence was offered to show "disposition toward violations" is equally untenable. In a trial for a criminal offense, evidence of other distinct offenses is generally inadmissible, unless tending to show "motive, intent, the absence of, mistake or accident,"[2] or, in sexual offenses, to show "opportunity, disposition of the parties, and intimate relations tending to break down self respect." People v. Williams (1965), 2 Mich. App. 91, 94. These exceptions are not applicable in a homicide case where the evidence of unrelated and dissimilar prior incidents is offered solely to prove defendant was more likely to have committed, or disposed toward the commission of, that offense for which he stands trial.
Evidence of unrelated and collateral matters "raises false issues and is likely to lead the jury to try the accused of what is not in the information." People v. Pinkerton (1889) 79 Mich. 110, 113. To compel defendant to answer such charges is to bring him to trial on one charge and ask him to acquit himself on another. See People v. Wright (1940), 294 Mich. 20. Such conduct by the prosecutor, in this case, created a highly prejudicial atmosphere for the defendant. Prosecutor's arguments before the trial and before this court justifying admission of the evidence are untenable.
*73 Defendant's assertion that the trial court erred in excluding the criminal record of the deceased, offered for the purpose of showing his quarrelsome and argumentative nature, is also without merit. Such evidence is material only where shown that facts contained on deceased's criminal record, indicating a violent disposition, reflect his general reputation, and that defendant was aware of that reputation. There was no such showing by defendant and the deceased's record was properly excluded.
Defendant also asserts that prejudicial error occurred in prosecutor's final argument to the jury wherein he stated:
"So on the three points of self-defense, on none of them has defendant established his case; and remember, he has to prove all three, and he hasn't established any one of the three."
This position is clearly contrary to the law in Michigan. See People v. Asbury (1932), 257 Mich. 297. The assistant prosecutor made numerous references to defendant's burden of proving that he acted in self-defense and stated to the jury:
"I believe if you listen carefully you will find that the court will instruct you that all three of these elements must be established; not two, not one, but all three if you are to determine that this was self-defense."
Defense counsel, both in his closing arguments and in his requested charge to the jury, wanted the jury to know that it is the people's burden to prove the charge of murder beyond a reasonable doubt. The trial court (rejecting the defendant's requested instructions) charged the jury:
"Now, I further instruct you that self-defense, in proper cases, is the right of every person, but it *74 will not justify the taking of a human life unless you jurors are satisfied from the testimony first, that the defendant was not the aggressor in bringing on the difficulty, unless he was at that time in imminent danger of losing his own life or suffering some grievous bodily injury and that his only safety lay in striking the blow which caused the death of the deceased and second, that there existed at the time of the stabbing, in the defendant's mind, a present and impending necessity to so stab in order to save himself from death or some great bodily harm; and, third, there must have been no way open whereby he could have retreated as it appeared to him at that time, to a place of safety and thus avoided the conflict.
"Unless you find all three of these elements, then the plea of self-defense fails." (Emphasis added.)
Viewed in its entirety, we find the prosecutor's final argument improperly minimizing the people's burden to prove the charge of murder beyond a reasonable doubt and correspondingly magnifying defendant's burden of proving his claim of self-defense.
To establish the plea of self-defense, it is true that defendant must come forward with evidence to show justification for his acts. But this requirement neither diminishes nor shifts from the people the burden of proof beyond a reasonable doubt.
Extensive and repetitious statements during the course of a trial that a defendant must prove his plea of self-defense create the impression that the people have unquestionably established guilt, and defendant must now overcome that guilt or "the plea of self-defense fails."
This argument fails to take into account the possibility that a jury may reject defendant's argument of self-defense and still bring in a verdict of not guilty, either because the people failed to prove their case or for some other unstated reason.
*75 The court should have made this clear, but unfortunately, the instructions given failed to do so, and the damaging prejudicial effect remained.
Reversed and remanded.
QUINN, P.J., and CORKIN, J., concurred.
NOTES
[1] CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549).
[2] CL 1948, § 768.27 (Stat Ann 1954 Rev § 28.1050).