People v. Peabody , 37 Mich. App. 87 ( 1971 )

37 Mich. App. 87 (1971) 194 N.W.2d 532

PEOPLE
v.
PEABODY

Docket No. 10390.

Michigan Court of Appeals.

Decided November 22, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston III, Chief Appellate Attorney, for the people.

Arthur J. Tarnow, State Appellate Defender, for defendant.

Before: R.B. BURNS, P.J., and LEVIN and T.M. BURNS, JJ.

LEVIN, J.

The defendant appeals his conviction of the offense of sodomy. MCLA 750.158; MSA 28.355.

The defendant took the stand and denied that he had committed the offense. At the conclusion of his testimony, his lawyer brought out that he had previously been convicted of drinking and fighting offenses and had pled guilty to "indecent liberties."

The entire cross-examination of the defendant consisted of the following:

By Mr. Stephan [assistant prosecuting attorney]:

"Q. Mr. Peabody, you pled guilty to indecent liberties in Chicago?

"A. That is right.

"Q. What was the original charge?

"Mr. Milanowski [defendant's lawyer]: Objection, your Honor.

"The Court: It is cross-examination, you brought it out, Mr. Milanowski.

"Q. What was the original charge?

"A. Uh —

"Q. You can't recall?

"A. It had something to do what they first said it was —

"Q. Rape?

"A. No, I don't think anybody was raped or anything.

"Q. Gross indecency?

"A. It might have been that.

"Q. It might have been gross indecency?

"A. Yes.

"Mr. Stephan: That's all."

In People v. Brocato, 17 Mich App 277, 302-303 (1969), we said:

"a defendant testifying at his own trial may not be asked if he has been arrested or charged with crime, where the arrest or charge has not resulted in a conviction and where the only purpose of the questions is to impeach the defendant's credibility as a witness. Where credibility is the only issue, the probative value of arrests and charges, unsubstantiated by a conviction, is slight at best. When weighed against the great danger that the jury, despite careful instructions, might misapply such evidence, the scales of justice tip in favor of exclusion, United States v. Beno (CA 2, 1963), 324 F2d 582."

Both the holding and the reasoning of our Court in Brocato oblige us to reverse the defendant's conviction. The gross indecency charge was not substantiated by a conviction and, therefore, the people were not entitled to bring out on cross-examination that the defendant had been charged with that offense. Defendants who plead guilty to lesser offenses, as well as those who are convicted after a trial of the originally charged offense or of a lesser offense, are entitled to the protection of the Brocato rule. See People v. Farrar, 36 Mich App 294 (1971).^[*]

The defendant's lawyer did not open the door to the impermissible inquiry concerning the original charge by bringing out on direct examination that the defendant had been convicted of indecent liberties. We have rejected the contention that a defendant is deprived of the effective assistance of counsel when his lawyer brings out his prior record on direct examination. See People v. Jelks, 33 Mich App 425, 431 (1971), where we said that, " * * * many defense lawyers believe it better to bring this negative information out initially than to let the prosecutor stress it during cross-examination".

To hold that a defendant's lawyer opens the door by adverting to a defendant's prior conviction record during direct examination would confront defendants and their lawyers with an unnecessary dilemma: whether to reveal a prior record on direct examination and thereby open the door to inquiry otherwise impermissible, or to leave it to the prosecutor to bring out the record for the first time on cross-examination. A defendant should not be penalized because his lawyer seeks to soften the unfavorable impact on the jury of his client's conviction record by bringing it out himself rather than standing by so that the prosecutor can belabor it on cross-examination.

Reversed and remanded for a new trial.

All concurred.

NOTES

[*] See, also, Cachola v The Kroger Company, 32 Mich App 557, leave den 385 Mich 775 (1971); People v James, 36 Mich App 550 (1971).