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12/03/75 PEOPLE v. RAPPUHN

December 3, 1975

PEOPLE
v.
RAPPUHN



Appeal from Oakland, Robert L. Templin, J.

Quinn, P. J., and R. B. Burns and D. E. Holbrook, Jr., JJ.

SYLLABUS BY THE COURT

1. Witnesses -- Examination -- Cross-Examination -- Prior Arrests -- Higher Charges -- Prior Convictions.

No inquiry may be made regarding prior arrests or charges against a witness in the examination or cross-examination of 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.

2. Witnesses -- -- Credibility -- Impeachment -- Misdemeanor Convictions.

The credibility of a defendant in a criminal case may not be impeached by reference to prior misdemeanor convictions.

3. Witnesses -- -- Credibility -- Convictions -- Prosecutor's Inquiry -- Prior Convictions -- Cross-Examination -- Statutes.

The only Conclusion that comports with the plain language of a statute providing that "such * * * conviction may be shown for the purpose of affecting his credibility" is that a prosecutor's inquiry into the factual basis behind a defendant's prior criminal convictions constitutes reversible error; it is the conviction itself that may be shown on cross-examination to bear on the defendant's credibility (MCLA 600.2159; MSA 27A.2159).

4. Witnesses -- -- Prosecutor's Question -- Prejudice -- Attempted Assault -- Prior Arrests -- Examination -- Cross-Examination.

A prosecutor's question whether a defendant who had admitted being convicted of attempted felonious assault was previously convicted of attempting to assault a woman with a dangerous weapon violates the rule that no inquiry may be made in the examination or cross-examination of a witness regarding prior arrests or charges which did not result in conviction; there is no such crime as attempting to assault a woman with a dangerous weapon.

5. Witnesses -- -- Cross-Examination -- Credibility -- Prejudice -- Discretion.

A prosecutor may not be allowed to prejudice the jury by cross-examining a defendant concerning prior convictions under the guise of testing his credibility.

6. -- Prejudice -- Miscarriage of Justice -- Objection -- Cross-Examination -- Psychiatric Help -- Statutes.

There was a miscarriage of Justice where the prosecutor, in a trial for kidnapping and rape, over defendant's objection cross-examined the defendant regarding a statement that if he had gotten psychiatric help after a previous assault of a woman the present crimes might not have happened (MCLA 769.26; MSA 28.1096).

The opinion of the court was delivered by: Burns

Gary J. Rappuhn was convicted of rape and kidnapping. Defendant appeals.

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 750.349; 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 ...


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