People v. Rappuhn

238 N.W.2d 400, 66 Mich. App. 17, 1975 Mich. App. LEXIS 883
CourtMichigan Court of Appeals
DecidedDecember 3, 1975
DocketDocket No. 21324
StatusPublished

This text of 238 N.W.2d 400 (People v. Rappuhn) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Rappuhn, 238 N.W.2d 400, 66 Mich. App. 17, 1975 Mich. App. LEXIS 883 (Mich. Ct. App. 1975).

Opinion

R. B. Burns, J.

We have the unpleasant task of reversing, for the second time, a jury verdict convicting defendant Rappuhn of rape, MCLA 750.520; MSA 28.788, and kidnapping, MCLA [19]*19750.349; MSA 28.581. Defendant was first convicted in 1968. That result was affirmed by this Court, 25 Mich App 62; 180 NW2d 900 (1970), but was reversed by the Supreme Court in People v Rappuhn, 390 Mich 266; 212 NW2d 205 (1973), because of the prosecutor’s improper impeachment tactics. The retrial and conviction leading to this appeal occurred in April, 1974. The prosecutor’s impeachment tactics in this second trial are, if anything, even more objectionable.

Defendant took the stand on his own behalf. Near the end of the prosecutor’s extensive cross-examination of defendant, the following exchange appears:

"Q. You have been convicted of a few crimes; have you not?
"A. Yes.
”Q. Why don’t you tell the jury what they are?
"Mr. Lee: I object. It is not relevant, not material, he’s testified he has been convicted of crimes. I think that is sufficient to attack his credibility for that basis. What crimes is irrelevant and immaterial and would only be prejudicial.
"The Court: Overruled, you may have an answer.
"The Witness: Would you repeat the question?
"Q. (by Mr. Morrow [assistant prosecuting attorney]): Yes. What crimes have you been convicted of?
"A. Car theft.
"Q. When?
"A. 1960. Simple larceny.
"Q. When?
"A. Latter part of '60 or '61. Larceny from an automobile in '63. Attempt felonious assault in '66.
"Q. What was the last one?
"A. Attempt felonious assault.
"Q. That it?
"A. Yes, to my recollection.
"Q. On the night in question you, of course, concluded [20]*20for the jury in grand fashion that you didn’t assault or rape or kidnap Connie Wickman?
"A. No, I didn’t.
"Q. But you were convicted a year earlier of attempting to assault a woman with a dangerous weapon?
"Mr. Lee: Objection, your Honor, improper.
"The Court: Overruled.
"The Witness: No, I wasn’t.
"Q. (by Mr. Morrow): Attempted felonious assault; isn’t that what you call it?
"A. I believe you said with a dangerous weapon.
”Q. Yes, that’s what I said.
"A. That’s not true.
"Q. Felonious assault, felonious assault.
"A. I said 'attempt felonious assault.’ ”

In People v Falkner, 389 Mich 682, 695; 209 NW2d 193, 199 (1973), the Michigan Supreme Court held as follows:

"We hold that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by plea or trial.”

In People v Renno, 392 Mich 45; 219 NW2d 422 (1974), the Supreme Court held that the credibility of a defendant in a criminal case may not be impeached by reference to prior misdemeanor convictions. Renno involved a situation where the prosecutor demanded the factual details underlying a past conviction. The Court concluded:

“We feel that the prosecutor’s inquiry into the factual basis behind defendant’s guilty plea falls within the Falkner holding. He is doing no more than asking defendant what the original charges were which did not [21]*21result in conviction. Such questioning was improper under our Falkner, supra, holding.” Renno, supra, 59. (Emphasis added.)

This language makes it clear that the Supreme Court intends Falkner to stand for the general proposition that a prosecutor’s inquiry into the factual basis behind a defendant’s prior criminal convictions constitutes reversible error • This is the only conclusion that comports with the plain language of MCLA 600.2159; MSA 27A.2159 that "such * * * conviction may be shown for the purpose of affecting his credibility”. It is the conviction itself that may be shown on cross-examination to bear on the defendant’s credibility. There is a simple reason why allusion to the factual details behind prior convictions is necessarily inconsistant with Falkner. That is: How can a court or jury know whether or not, in cross-examining as to the factual basis underlying prior convictions, the prosecutor is obliquely alluding to "higher original charges” or prior arrests "which did not result in conviction”? The jury cannot know the antecedents of prior prosecutions. The inference, however, is usually unmistakable. Such an inference is contained in the following question: "But you were convicted a year earlier of attempting to assault a woman with a dangerous weapon”? This and the subsequent questions of the prosecutor as quoted above are violative of Falkner.

The prejudicial nature of such questioning is clearly demonstrated by the present case. The prosecutor followed up his disparaging comment about the defendant’s denial of guilt with the immediate accusative question concerning the alleged conviction for assaulting a woman with a dangerous weapon. There is, of course, no such crime as "attempting to assault a woman with a [22]*22dangerous weapon”. The defendant had already admitted to this conviction for attempted felonious assault. His credibility had been properly impeached. The prosecutor’s emphasis on the fact that the prior conviction involved an assault on a woman seems obviously designed to influence the jury to find that defendant must be guilty of the currently charged rape. In People v Eddington, 387 Mich 551, 567; 198 NW2d 297, 303 (1972), the Supreme Court stated:

"A trial judge should exercise his discretion in such a way that a defendant is not cross-examined, under the guise of testing credibility, merely to prejudice the jury.”

The trial judge should have sustained defendant’s objection to this prejudicial exchange.

We find further prejudicial error in the prosecutor’s attempts to admit into evidence a statement allegedly made by defendant to arresting officer Fredericks while being transported to jail. At defendant’s first trial the officer was allowed to testify as to this statement as follows:

" 'A.

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Related

People v. Falkner
209 N.W.2d 193 (Michigan Supreme Court, 1973)
People v. Renno
219 N.W.2d 422 (Michigan Supreme Court, 1974)
People v. Ruppuhn
180 N.W.2d 900 (Michigan Court of Appeals, 1970)
People v. Eddington
198 N.W.2d 297 (Michigan Supreme Court, 1972)
People v. Farrar
193 N.W.2d 363 (Michigan Court of Appeals, 1971)
People v. Rappuhn
212 N.W.2d 205 (Michigan Supreme Court, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
238 N.W.2d 400, 66 Mich. App. 17, 1975 Mich. App. LEXIS 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rappuhn-michctapp-1975.