People v. McCartney, Docket No. 14554

• Decision Date: 26 April 1973
• Docket Number: Docket No. 14554,No. 3,3
• Citation: 208 N.W.2d 547,46 Mich.App. 691
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Vincent McCARTNEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 547

208 N.W.2d 547

46 Mich.App. 691

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Vincent McCARTNEY, Defendant-Appellant.

Docket No. 14554.

Court of Appeals of Michigan, Division No. 3.

April 26, 1973.

Released for Publication June 27, 1973.

J. Richard Robinson, Church, Wyble, Kritselis & Van Duzer, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald E. Zimmer, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and BRONSON and VanVALKENBURG, ^* JJ.

Van VALKENBURG, Judge.

Defendant was found guilty by a jury of entering without breaking with intent to commit a larceny, M.C.L.A. § 750.111; M.S.A. § 28.306, and larceny of property with a value in excess of $100.00, M.C.L.A. § 750.356; M.S.A. § 28.588. Defendant was sentenced to concurrent sentences of 2 to 5 and 3 to 5 years in prison.

During the trial a sheriff's deputy who was a fingerprint expert was called bo the stand to identify certain prints which had been found about the situs of the crime. The prosecutor in his questioning of the witness asked if the witness had ever taken defendant's fingerprints. The witness answered that he had taken defendant's fingerprints in 1969. The charged crime occurred in 1971. Defense counsel immediately objected. The trial judge responded that:

'Well, I will permit the Prosecutor to proceed a ways to see whether or not it connects up with anything he asks. The only statements at this point is he printed the Defendant in 1969.'

Thus encouraged, the prosecutor, not content with the mere possible intimation of some prior contact with defendant involving some criminal activity, asked the witness to identify a proposed exhibit; to which the witness answered:

'Yes, sir. This is a palm print card from the Michigan State Police. It has on it the name of Robert Vincent McCartney; Date of Birth, 7--11--36; the date taken was 2--19--69; has a number 16,629, which is the inmate number; bears my signature and the signature of Mr. McCartney as to both the right and the left palm print.'

The witness further indicated that palm prints were only taken in felony cases.

The prosecutor moved for the admission of the proposed exhibit. Defense counsel objected to the proposed exhibit and further asserted that the reference indicating that defendant had been arrested on a prior occasion was so prejudicial that it could not be cured by an instruction. The trial court refused to admit the exhibit, but denied the motion for a mistrial. The judge attempted to cure the error by instructing to disregard the testimony.

There is no question that the references by the witness were improper and prejudicial. On appeal the prosecutor, while admitting that the comments constituted error, asserts that reversible error did not result since the erroneous comments were volunteered and non-responsive, were cured by the trial court's instruction and were, in any event, harmless.

We are unimpressed with the assertion that the error was curable by an instruction since the controverted comments by the witness were non-responsive and volunteered. Even if this Court were to give the prosecutor the benefit of the doubt as to whether the answers given were truely non-responsive, we feel that the prosecutor has a high degree of duty to insure that police officers do not venture into forbidden areas in their testimony. While we can sympathize with the posecutors where witnesses other than police officers blurt out...