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Summary of People v Johnson, Docket No. 55089 (Supreme Court of Michigan, decided April 7, 1975)

Factual and Procedural Background

On October 10, 1971, Trooper Logan Tisdale stopped a 1965 Pontiac for an inoperative taillight. A television set was visible on the back seat. A pistol was observed partially hidden behind defendant Johnson's left foot while Johnson sat in the front passenger seat; two additional pistols were later found under the front seat. The weapons were confiscated. Defendant was charged with carrying a concealed weapon (MCLA 750.227; MSA 28.424). A pretrial motion to suppress the weapons was denied. At trial the prosecution presented Trooper Tisdale and defendant as witnesses. The prosecutor's cross-examination focused heavily on defendant's employment, financial status, marital and support obligations, and past convictions; defense counsel objected to portions of this inquiry. In closing argument the prosecutor told the jury they could consider that the defendant "had two cents in his pocket" and "hasn't worked for a long time" in light of "three fully loaded weapons in the vehicle" when deciding whether defendant committed the CCW offense. The jury convicted defendant of carrying a concealed weapon and he was sentenced to 2½ to 5 years' imprisonment. The Court of Appeals affirmed the conviction. The Supreme Court granted leave to appeal and, in the opinion authored by Justice Williams, reversed the Court of Appeals and remanded for a new trial or further proceedings not inconsistent with the opinion. Justice M.S. Coleman (joined by J. Fitzgerald) dissented, asserting he would have affirmed.

Legal Issues Presented

  1. Whether the trial court abused its discretion by permitting prosecutorial cross-examination and argument that advised the jury it could consider defendant's poverty and unemployment in determining guilt of carrying a concealed weapon.
  2. Whether the trial court abused its discretion by permitting prosecutorial questioning and argument that suggested defendant, because of his poverty, unemployment, and possession of three loaded weapons, was en route to commit an uncharged violent crime (i.e., attempting to prove "Crime X" to obtain conviction for "Crime Y").

Arguments of the Parties

Prosecutor's Arguments

  • The prosecutor cross-examined defendant about employment, education, marital status, child support obligations, financial condition (e.g., having "two cents in his pocket"), and prior convictions/probationary status.
  • In closing argument the prosecutor asserted the jury could consider defendant's poverty and unemployment together with the presence of three loaded weapons in deciding whether defendant committed the CCW offense, and suggested these facts tended to show defendant was on his way to commit a violent crime.

Defense's Arguments

  • Defense counsel objected at trial to the line of questioning about employment and financial status as immaterial to the charged offense of carrying a concealed weapon.
  • On appeal the defense argued the cross-examination and the prosecutor's closing argument improperly introduced extraneous matters and suggested propensity or commission of an uncharged crime to obtain conviction for the charged offense; the defense contended this was prejudicial and reversible error.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v Jackson, 391 Mich. 323; 217 N.W.2d 22 (1974) Cited in the context of impeachment through use of past conviction record. The court noted the issue was raised but stated there was no need in this case to reach the propriety of impeachment through past conviction record.
People v Rappuhn, 390 Mich. 266; 212 N.W.2d 205 (1973) Establishes that reference to probationary status as impeachment may be clear error as of the decision date. The court observed that had the reference to probationary status occurred in a trial after November 20, 1973, such impeachment would have been clear error under Rappuhn.
State v Beyor, 129 Vt. 472; 282 A.2d 819 (1971) Example from another jurisdiction addressing impermissible proof of uncharged crimes to convict for charged offense. Cited as a recent out-of-state example supporting the proposition that attempting to prove an uncharged crime to obtain conviction for a charged offense is improper.
People v Liapis, 3 Ill. App.3d 864; 279 N.E.2d 368 (1972) Another out-of-state example addressing similar evidentiary prohibitions. Used as an illustrative recent example from another jurisdiction reinforcing the rule against proving "Crime X" to convict for "Crime Y."
People v Pinkerton, 79 Mich. 110, 114; 44 N.W. 180 (1889) "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." The court relied on this long-standing Michigan rule to condemn cross-examination that introduces independent, extraneous issues against a defendant-witness.
People v Whalen, 390 Mich. 672, 683-687; 213 N.W.2d 116 (1973) Reaffirmed the prohibition on introducing independent issues in cross-examination even when the witness is not a criminal defendant. Cited as a recent reaffirmation of the principle that cross-examination should not introduce independent issues against witnesses.
People v Wright, 294 Mich. 20, 27-30; 292 N.W. 539 (1940) Earlier authority supporting the prohibition on improper cross-examination and introduction of independent issues. Cited as additional supporting authority for the rule forbidding such cross-examination.
People v Dye, 356 Mich. 271, 277; 96 N.W.2d 788 (1959) Trial courts have broad discretion to rule on relevance and materiality but such discretion is limited by abuse standards. The court acknowledged the trial court's broad discretion per Dye but found that discretion was abused in this case.
People v Humphreys, 24 Mich. App. 411; 180 N.W.2d 328 (1970) Part of a line of cases addressing appellate review where defense failed to object or request curative instruction. The court cited these cases in discussing appellee's argument about failure to request a curative instruction, distinguished them because there was an objection here, and noted Humphreys for the proposition that some prejudice might remain despite curative instructions.
People v Majette, 39 Mich. App. 35; 197 N.W.2d 78 (1972) Part of the cited line concerning failure to request curative instruction where no objection was made. Cited by appellee but distinguished by the Supreme Court because defense did object at trial.
People v Sesson, 45 Mich. App. 288; 206 N.W.2d 495 (1973) Another case in the line about curative instruction and absence of objection. Referenced by appellee and distinguished on the same basis (presence of objection in this case).
People v Gotshall, 123 Mich. 474, 483; 82 N.W. 274 (1900) Courts have a duty to keep prosecutorial "character" examination within reasonable bounds. Cited to underscore the necessity of judicial constraint on prosecutorial character/examination practices and to justify reversal for abuse of discretion.
United States v Detroit Lumber Company, 200 U.S. 321, 337; 26 S Ct 282; 50 L Ed 499 (1906) Explains that a syllabus (headnote) is not part of the court's opinion. Cited in the opinion's note explaining that the included syllabus is not part of the Court's opinion but was prepared for convenience by the Supreme Court Reporter.
48 Mich. App. 50; 209 N.W.2d 868 (1973) The Court of Appeals' prior decision affirming defendant's conviction. Noted as the intermediate appellate decision that affirmed the conviction and which the Supreme Court reversed.

Court's Reasoning and Analysis

The court focused on two principal errors: (1) the prosecutor's cross-examination and argument that invited the jury to consider defendant's poverty and unemployment as evidence of guilt for carrying a concealed weapon; and (2) the prosecutor's effort to persuade the jury that, because defendant was impoverished and unemployed and three loaded weapons were in the vehicle, he was en route to commit a violent, uncharged crime — effectively attempting to prove "Crime X" to secure a conviction for "Crime Y."

The court reasoned that neither poverty nor unemployment is an element of the crime of carrying a concealed weapon, nor are they logically probative of guilt or of testimonial credibility in this context. The prosecutor's statement that the jury could consider such facts in deciding whether defendant committed the CCW offense was labeled a non sequitur, erroneous, and patently prejudicial. The court held that the cross-examination that emphasized these extraneous matters was likewise improper.

The court further explained that prosecutors may not introduce or attempt to prove uncharged, unrelated offenses in order to obtain a conviction for the charged offense. The court relied on long-standing Michigan authorities (including People v Pinkerton) and more recent reaffirmations (e.g., People v Whalen) that forbid cross-examination and argument that introduce independent issues or suggest commission of an uncharged crime. While recognizing the trial court's broad discretion to rule on relevance and materiality (People v Dye), the court emphasized that such discretion has limits and may be abused. Because defense counsel did object at trial, the Supreme Court distinguished appellate authorities that limit review when no timely objection or curative instruction request was made.

After review, the court concluded the trial court abused its discretion by permitting the prosecutor to pursue a line of questioning and argument designed to connect extraneous matters (poverty, unemployment, propensity to commit violence) causally to guilt for CCW. The court found the conduct prejudicial and reversible.

Holding and Implications

Holding: The Court of Appeals' affirmance is reversed and the cause is remanded for a new trial or other proceedings not inconsistent with the opinion. (The opinion states: "The Court of Appeals is reversed. This cause is remanded for new trial or other proceedings not inconsistent with this opinion.")

Implications:

  • The direct effect is reversal of the conviction and a remand for a new trial or further proceedings consistent with the Supreme Court's analysis.
  • The Court's ruling emphasizes that prosecutorial cross-examination and argument that invite jurors to infer guilt from a defendant's poverty, unemployment, or implied propensity to commit an uncharged violent crime are improper and may constitute reversible error when they prejudice the defendant.
  • The Court expressly limited its decision to the issues necessary to the disposition and declined to express an opinion on other issues raised by the parties.

Separate Opinions

Justice Williams authored the majority opinion (joined by Chief Justice T.G. Kavanagh and Justices T.M. Kavanagh, Swainson, and Levin). Justice M.S. Coleman (joined by Justice J.W. Fitzgerald) dissented, stating he would have affirmed the conviction based on the factual circumstances and the Court of Appeals' reasoning.

PEOPLE v. JOHNSON

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 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 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 on defendant's background and alleged predisposition to criminal activity. The cross-examination included reference to:

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.

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?
"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?
"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.

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 N.W.2d 22 (1974).

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 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 N.W.2d 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.

Consequently this argument and advice to the jury by the prosecutor is erroneous and patently prejudicial. And in this connection so is the cross-examination leading up to this argument and advice.

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 N.W.2d 205 (1973), decided that date.

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. Eighty-five years ago, this Court held unequivocally:

Nor is it novel in other jurisdictions. See as recent examples: State v Beyor, 129 Vt. 472; 282 A.2d 819 (1971), and People v Liapis, 3 Ill. App.3d 864; 279 N.E.2d 368 (1972).

"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 N.W.2d 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 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. People v Dye, 356 Mich. 271, 277; 96 N.W.2d 788 (1959). Yet there is an obvious limit to the exercise of such discretion in cases of abuse. People v Dye, supra, 277.

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 N.W.2d 328 (1970); People v Majette, 39 Mich. App. 35; 197 N.W.2d 78 (1972); and People v Sesson, 45 Mich. App. 288; 206 N.W.2d 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.

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.

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 N.W.2d 868 (1973), I would affirm the conviction.

J.W. FITZGERALD, J., concurred with M.S. COLEMAN, J.

NOTE: Where possible, a syllabus (headnote), such as this, will be released at the time the opinion is released. This syllabus is not a part of the opinion of the Court but has been written by the Supreme Court Reporter as a summary of the case for the convenience of readers. See United States v Detroit Lumber Company, 200 U.S. 321, 337; 26 S Ct 282; 50 L Ed 499 (1906).

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PEOPLE v. JOHNSON
(Apr 7, 1975)