People v. Hammond , 394 Mich. 627 ( 1975 )

T. G. Kavanagh, C. J.

Defendant was found guilty of armed robbery by a jury and the Court of Appeals affirmed his conviction.

Defendant raises three questions on appeal, one asserting unfair identification procedures and the other two claiming prosecutorial misconduct depriving defendant of a fair trial.

Because we are persuaded that the prosecutor did employ tactics which we have repeatedly held to be unfair, we reverse the conviction and order a new trial.

On December 19, 1972, an armed robber held up a party store in Dearborn Heights. The cashier reported the robbery to the police and an hour after the holdup was asked to look at photographs at the police department. From among an estimated 700-1000 pictures she selected one as depicting the robber. She said that was the man but could not be sure until she saw him in person. The next day she viewed a lineup of six men and immediately picked out the defendant (who had come to the lineup voluntarily) as the robber. Her identification was immediate and positive and when she identified the defendant in court, she expressly repudiated any suggestion that the police had influenced her choice of the photograph or the individual at the lineup.

Defendant claims that the lineup identification was impermissibly suggestive, resulting in a tainted in-court identification that should not have been allowed.

Defendant argues that unless the photo identification is certain, any suggestiveness in the lineup magnifies the possibility of error. In this case, he claims that because the physical characteristics of the six men in the lineup varied so greatly, in effect there were only two persons for the witness to pick from.

While defendant’s argument has merit, we would not predicate reversal on that issue. We are not persuaded that the identification procedures used here were so bad that they must be considered impermissibly suggestive.

It is defendant’s second assertion, prosecutorial misconduct, that we find controlling.

The defendant claims that the prosecutor intentionally and impermissibly brought out evidence of defendant’s bad character when he cross-examined defendant’s wife. Defendant, who did not take the stand, did not put his character in issue and called his wife solely as an alibi witness.

The prosecutor in cross-examination, over objection by defense counsel, brought out that the wife was receiving ADC even though her husband lived in the house; the defendant didn’t have regular employment but that the witness wife nevertheless cooked for and fed him and that she did so despite the fact that he would absent himself overnight on occasion; and that he had bought a car for $50 and owned a cashmere coat.

The people claim that the foregoing is not evidence of defendant’s bad character at all and that even if it were, it was not damaging to defendant’s case.

We do not agree.

While that cross-examination may have diminished the wife’s credibility, its necessary corollary was to disparage the defendant as a lazy non-provider. It is a well-settled rule that if the defendant, does not first put his character in issue, the state may not offer proof of his bad character. People v Boske, 221 Mich 129; 190 NW 656 (1922); 1 Wigmore, Evidence (3d ed), § 57, p 456.

Any argument by the appellee that this evidence was not elicited to shed bad light on the character of the defendant is wholly discredited when the tenor of the prosecutor’s summation is examined:

"This young man was pretty cunning. He left his wife at 1:30, no money in his pocket, and yet I asked her if he had any money and to her knowledge he had none. He hasn’t worked since last July except one job for a week. So, now we’ve established motive. He needs money. He and his wife that day out of a $150 check, an ADC check, by the way, that’s granted for the aid of dependent children, bought food, paid rent, bought food stamps, paid two dollars for the replacement of a tire— which I will talk about in a few minutes — bought some gas. That young couple only had twenty dollars left to last them for two weeks. They needed money desperately.

"Let’s not be shedding any tears for a man who won’t try to go out and change a tire and has ADC money to throw away by not having the strength or the desire to change a tire.

"In any event, he was under the same roof living off ADC money, an able-bodied young man, too lazy to work, too lazy even to change a tire.”

In People v Johnson, 393 Mich 488, 498-499; 227 NW2d 523 (1975), this Court stated:

"Whether defendant was rich or poor, employed or unemployed, has nothing to do with guilt in the instant case * * * .

"It is the duty of the courts to keep prosecutorial 'character’ examination 'within reasonable bounds’. People v Gotshall, 123 Mich 474, 483; 82 NW 274 (1900). The instant case well illustrates the necessity for such constraint.”

The case at bar also well illustrates such necessity. It is impossible to determine now how damaging that testimony was to the defendant. For this reason we must allow him a new trial.

Reversed and remanded.

Levin, J., concurred with T. G. Kavanagh, C. J. Williams, J., concurred in the result.