People v. Terry Moore
This text of 223 N.W.2d 302 (People v. Terry Moore) 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.
Opinions
R. B. Burns, J.
Defendants were tried and convicted,, jointly, of breaking and entering an occupied dwelling with intent to commit larceny. MCLA 750.110; MSA 28.305.
They appeal and we reverse.
The prosecutor, while cross-examining defendant McFarland, adduced the following testimony:
”Q. Were you arrested for breaking and entering?
"A. The sergeant said, 'these are the boys that did the breaking and entering and you’re under arrest’.
"Q. What did you say?
"A. Nothing.
"Q. Nothing?
[680]*680”A. I was flabbergasted.
“Q. Did you ever tell the police about Earl?
'A. What do you mean, sir, about Earl?
”Q. Did you ever mention Earl to the police?
"A. I never had a chance. I went directly to the police station.
”Q. Did the police officer talk to you at the police station?
'A. Yes.
”Q. What did you tell him?
"A. He started asking if I was a heroin addict.
”A. After they were talking to me about the heroin, they said I had the right to be quiet and to get an attorney. I said I guess I should.
”Q. You didn’t tell them anything else?
’A. Outside of my name and stuff. I mean — I was trying to cooperate.
”Q. Did you tell them about a broken windshield?
”A. No, I didn’t.
”Q. Did you tell them about a fight?
'A. No, I did not.
”Q. Were you perspiring or a little sweaty when the police arrested you, if you remember?
’A. I imagine I was. I’d walked quite far.”
We think this testimony is the exact type of testimony prohibited in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973).
Also, the trial court should not have allowed the prosecutor to conduct the irrelevant demonstration of opening a door with a credit card.
In addition, when instructing the jury, the trial court should keep in mind the distinction between inferring intent from an unlawful act and presuming intent from an unlawful act.
Reversed and remanded for a new trial.
R. L. Smith, J., concurred.
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Cite This Page — Counsel Stack
223 N.W.2d 302, 55 Mich. App. 678, 1974 Mich. App. LEXIS 868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-terry-moore-michctapp-1974.