People v. Camel

• Decision Date: 25 April 1968
• Docket Number: No. 2,Docket No. 3621,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amos CAMEL, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 790

160 N.W.2d 790

11 Mich.App. 219

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amos CAMEL, Jr., Defendant-Appellant.

Docket No. 3621.

Court of Appeals of Michigan, Division No. 2.

April 25, 1968.

Released for Publication Sept. 13, 1968.

Louis A. Smith, Doyle & Smith, Lansing, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald L. Reisig, Pros. Atty., Ingham County, Lansing, for appellee.

Before QUINN, P.J., and T. G. KAVANAGH and LEVIN, JJ.

T. G. KAVANAGH, Judge.

Defendant was convicted by a jury of larceny in a building ¹ and was sentenced to 2 to 4 years in prison. He appeals claiming that the court below erred in denying his motion for mistrial during the course of the trial. Defendant's motion was prompted by the following interrogation by the assistant prosecutor of a police officer called by him:

'Q. All right. Then do you recall the conversation that you had after you advised him of his rights?

'A. Yes sir. I asked him his name and address and such, and then he stated that he had got out of Jeckson prison. * * * ' Defendant immediately asked that the jury be excused and in their absence moved for a mistrial on the ground that the reference to his previous prison term constituted prejudicial error. We hold that the court erred in denying the motion for mistrial.

A similar situation was before the Supreme Court in People v. Greenway (1962), 365 Mich. 547, 114 N.W.2d 188. There the people called a witness as a hostile witness for the prosecution and asked him where he had met the defendant. When he answered, 'In the Arkansas prison', defense counsel moved for a mistrial which was denied. The Supreme Court reversed on the ground that evidence of former convictions or offenses is not admissible except in cases wherein such evidence is material or relevant to the case being tried. The Court said (p. 551, 114 N.W.2d p. 190):

'The answer by Carter, which the prosecution clearly anticipated or hoped for, was calculated to prejudice the minds of the jurors against the defendant.'

The Court in Greenway based its conclusion of the prosecutor's forewarning on the fact that the witness had made a statement to the police and that the record disclosed that the prosecutor was familiar with that statement. The facts in the case at bar are even stronger. Not only did the defendant make a statement of the police, which included a statement of the fact that defendant had served time in Jackson prison, but in addition, the voluntariness of that statement was put in issue and a Walker hearing ² was held to resolve the question. At the hearing in response to a question by the assistant prosecutor as to the substance of the statement, the police officer testified:

'He (defendant) stated that he had got out of Jackson prison on the 20th--that would be April 22, 1966.'

At the trial in chief the assistant prosecutor asked virtually the same question and received the same response. In our view it could only prejudice the defendant.

The people's position is not supported by People v. Fleish (1948), 321 Mich. 443, 32 N.W.2d 700. In that case the Supreme Court reaffirmed its commitment to the general rule that evidence of former convictions or offenses is inadmissible. However in Fleish the Court held that testimony by a witness that he had met the defendant in prison was admissible for a specific purpose which was germane to the people's case (a prosecution for common law conspiracy to murder), i.e., to show the relationship that a jury might infer existed between the alleged conspirators. No such specific purpose exists in the case at bar. Moreover, this Court has held that where such evidence is admissible for a particular purpose, it is incumbent upon the trial court to instruct the jury, whether or not so requested, that they may consider the testimony only for that particular purpose. People v. Askar (1967), 8 Mich.App. 95, 153 N.W.2d 888.

In view of the prior testimony at the Walker hearing, the objectionable response by this witness could have been anticipated. Since the trial judge is charged with the ultimate duty to control the proceedings before him, ³ and since he as well as the prosecutor failed to protect the defendant, when the damage was done by this testimony the court should have granted the motion for mistrial.

Reversed.

QUINN, Presiding Judge (dissenting).

Because of facts and procedures hereinafter noted, contained in the record but not mentioned in the majority opinion, I dissent.

Defendant was arrested on the premises where the larceny occurred April 23, 1966. Questioned that same day, defendant made certain oral statements to the police, including a statement that defendant 'got out of Jackson prison April 22, 1966'. The oral statements were reduced to writing by the officer to whom they were made in his police report dated April 23, 1966. June 24, 1966, the prosecution served notice that it intended to use such statements at trial. ¹ July 8, 1966, defendant filed demand for copies of the statements and motion to determine the use or suppression of them, ² together with a motion to dismiss. The latter was denied by order of July 15, 1966, but the record fails to disclose an order with respect to defendant's demand for copies or the statements and motion to determine their use or suppression. From the facts that defendant was furnished with a copy of the statements on day of trial and that they were received in evidence at trial as exhibit 1, I infer that the trial court ruled on the demand and motion to determine use or suppression from the bench.

Prior to taking any proofs and in the absence of the jury, a Walker type ³ hearing was had on the voluntariness of the statements. During this proceeding, the officer who interrogated defendant, on being asked to relate the contents of the oral statement, testified as follows: 'He (defendant) stated that he had got out of Jackson prison on the 20th--that would be April 22, 1966'. In the same proceeding and on cross-examination by defendant, the officer repeated this statement.

At trial before the jury, the same officer was asked:

'Q. All right. Then do you recall the conversation that you had after...