People v. Theodore Jones

267 N.W.2d 433, 82 Mich. App. 510, 1978 Mich. App. LEXIS 2245
Michigan Court of Appeals·Decided April 17, 1978·No. Docket 27999, 28000, 28001·Published·Cited by 15 cases

Opinions

D. C. Riley, J.

Defendant Theodore Roosevelt Jones appeals his jury conviction of one count of assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279, and two counts of felonious assault, MCLA 750.82; MSA 28.277, for which he was sentenced to concurrent terms of two-to-four and five-to-ten years in prison.

Defendant’s first argument on appeal presents this Court with the sensitive issue of cross-examination of witnesses regarding their religious opinions and practices. Defendant asserted the defenses of insanity and diminished capacity due to consumption of alcohol. The questions posed regarding religious beliefs related to the claim that defendant was so intoxicated that he lacked the requisite specific intent.

On direct examination defendant testified that he had experienced a religious conversion in 1953 and, as a result, had abstained from all drinking for a period of some 22 years. Following his conversion he was ordained a lay preacher in his church. Jones testified that he began to drink some two or three months prior to the date of the offense because he was depressed over a continuing illness. He testified further that he drank heavily during the day of the incident and that he had no memory of shooting anyone. His last recollection was of passing out in a bar and then awaking in jail the next morning.

On cross-examination defendant was asked how often he attended church, what the qualifications [513]*513were to be ordained in his church, and about his religious training and study.

Defendant’s son, Phil Jones, called as a defense witness, testified that he had never seen his father drink prior to the night in question, but he did not give any testimony concerning defendant’s religious opinion on drinking. On cross-examination, the following question and answer occurred:

"Q. [Prosecutor] I take it that you say you had been in the Applegate Bar, that you don’t share your father’s religious views on drinking?
"A. [Phil Jones] No.”

Defendant called several witnesses to testify as to his character and reputation. One such witness was Raymond Riggs, the pastor of defendant’s church. On direct examination the pastor related the history of the church, his personal background and training, and his acquaintance with defendant and knowledge of defendant’s church work. He stated that although defendant did not attend church services on a regular basis, he was a full member of the church. Reverend Riggs testified that under the tenets of the church, members were required to totally abstain from alcohol. As far as he was aware, defendant had lived up to that requirement.

On cross-examination the prosecutor asked if church members were required, on a regular basis, to reaffirm their belief in and adherence to the rule forbidding drinking. Reverend Riggs responded that such a requirement existed. The witness was then asked if he could reconcile defendant’s trial testimony that he had begun to drink some two or three months prior to the date of the offense with his church testimony that he was abiding by the abstinence rule:

[514]*514"Q. [Prosecutor] Is a person required on a periodic basis to profess their belief in this particular penitence?
"A. [Raymond Riggs] Yes, sir.
"Q. Are they required to declare they follow this particular penitence?
"A. Yes, sir.
"Q. Were you present when Mr. Jones testified today?
"A. Yes, sir.
"Q. Did you hear Mr. Jones testify from the stand that two to three months prior to this incident on the 24th of February, 1974 he commenced drinking?
"A. Yes, sir.
"Q. Did you hear him testify also that he has continued to drink on a periodic basis subsequent to this incident right up to the present time?
"A. Yes, sir.
"Q. Does that knowledge affect your opinion on his truthfulness and veracity?
"A. Yes, to the extent that it would be an exception to his mode of conduct and living, in deed [sic] so.
"Q. Can you reconcile his testimony that he continued to drink that he gave under oath here this morning, with his speaking in church that he was following total abstinence?
"A. No, no, not that particular point, no, sir.
"Q. How can you say that his reputation is good?
"A. Because up to this point the question asked of me was was he still in official fellowship with our church and I said yes and I said if this was continued he would be dealt with, you can rest assured.
"Q. The church would deal with this deviation from the faith?
"A. In deed [sic] so.

Defendant contends that the prosecution’s cross-examination of himself and these defense witnesses violated MCLA 600.1436; MSA 27A.1436, which reads:

"No person may be deemed incompetent as a witness [515]*515in any court, matter or proceeding, on account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.”

We will deal with the allegations as to each witness in order.

We do not find the cross-examination of defendant erroneous under the statute. Defendant himself testified that he was ordained a lay preacher in his church. The prosecutor’s questions regarding his qualifications for that position did not extend into any prejudicial area concerning his beliefs on the specific practices of the religion. While the question regarding his attendance record at church was arguably directed at defendant’s religious practice, it reasonably falls within acceptable limits of cross-examination on a claim of church membership. People v Bouchee, 400 Mich 253, 262; 253 NW2d 626 (1977).

The question asked of defendant’s son, Phil Jones, was facially violative of the statute. While defendant introduced testimony as to his own religious views on drinking, the religious opinion of this witness was not at issue in the trial. We might hesitate, however, to premise reversible error solely on this isolated question.

It is the cross-examination of Reverend Riggs which gives us the greatest concern. The prosecution brought out that defendant was required by the rules of his church to periodically reaffirm before the church his compliance with its tenets, including abstention from alcohol. The witness was then asked whether his opinion on defendant’s credibility and reputation was affected by the disparity between his trial testimony, in which he admitted drinking, and his church testimony.

The relevancy of this cross-examination on the [516]*516issue of defendant’s reputation for honesty and truthfulness is not disputed. Our concern is not with the relevance of the questions, but with the method.

The statute expressly states that questions as to religious opinions are not permissible.

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People v. Theodore Jones, 267 N.W.2d 433, 82 Mich. App. 510, 1978 Mich. App. LEXIS 2245 (Mich. Ct. App. 1978).

267 N.W.2d 433 (People v. Theodore Jones) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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People v. Theodore Jones
267 N.W.2d 433 (Michigan Court of Appeals, 1978)