People v. McCarver

• Decision Date: 07 November 1978
• Docket Number: Docket No. 78-3537
• Citation: 273 N.W.2d 570,87 Mich.App. 12
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin McCARVER, Defendant-Appellant. 87 Mich.App. 12, 273 N.W.2d 570
• Court: Court of Appeal of Michigan — District of US

Page 570

273 N.W.2d 570

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin McCARVER, Defendant-Appellant.

Docket No. 78-3537.

87 Mich.App. 12, 273 N.W.2d 570

Court of Appeals of Michigan.

Nov. 7, 1978.

Released for Publication Jan. 12, 1979.

[87 MICHAPP 14] Taylor, Yampolsky, Struwin & Hass by Jack M. Struwin, St. Joseph, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Smietanka, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P. J., and T. M. BURNS and D. E. HOLBROOK, JJ.

ON REMAND

T. M. BURNS, Judge.

The underlying facts of this case are stated in our prior opinion, People v. McCarver, 72 Mich.App. 311, 249 N.W.2d 403 (1976). In that initial assessment, a majority of the panel concluded that evidence of illegal marijuana possession or use by the defendant was improperly admitted in a prosecution for possession of amphetamines and reversed the conviction. On further appeal, that conclusion was held to be erroneous, People v. McCarver, 403 Mich. 376, 269 N.W.2d 186 (1978), and the case returned to us:

"(F)or consideration of the question of whether the testimony of the Federal agent and the state police detective, standing alone, or when combined with other issues raised by the defendant in the Court of Appeals but not discussed by that Court, served to deny the defendant a fair trial."

We proceed with that task.

[87 MICHAPP 15] Within a single issue, defendant claims he was deprived of a fair trial by testimonial references to the fact that he had a previous conviction and unspecified, uncharged criminal activity. Because different considerations apply to these points, we discuss these instances in two groups.

The first incident is described in both our earlier opinion and the opinion of the Supreme Court. In response to the prosecutor's inquiry concerning what the authorities were looking for when the search warrant was executed, the agent from the Federal Bureau of Alcohol, Tobacco & Firearms responded: "We were searching for firearms which were illegal by virtue of their possession by Mr. McCarver who was a convicted felon and certain narcotics or suspected narcotic substances."

Prior to trial, the trial court had granted defense counsel's motion to suppress reference to defendant's 1959 conviction for breaking and entering with intent to commit larceny for purposes of impeachment if defendant should choose to take the stand.

Our courts have recognized that prosecutors and police witnesses have a special obligation not to venture into forbidden areas of testimony which may prejudice the defense. If an officer brings out the fact that a defendant has previously been convicted or charged with crime, even if the answer could be considered nonresponsive, reversible error will have occurred. People v. McCartney, 46 Mich.App. 691, 208 N.W.2d 547 (1973). This Court has consistently condemned bringing a defendant's prior record to the jury's attention where that information is not properly admissible for impeachment purposes. See, E. g., People v. Sullivan, 32 Mich.App. 181, 188 N.W.2d 247 (1971), People v. Thomas Jones, 48 Mich.App. 470, 210 N.W.2d 497 [87 MICHAPP 16] (1973), People v Deblauwe, 60 Mich.App. 103, 230 N.W.2d 328 (1975). ¹

Given the trial court's order suppressing reference to defendant's prior conviction, which was fully justified, and the special duty of prosecutors to steer police witnesses clear of just such responses, we would rest reversal squarely on this point. The fact that defendant was a convicted felon was not relevant to the issues in This case, regardless of any possible relevance in the Federal prosecution.

Defendant also complains of six other separate references by various prosecution and defense witnesses to uncharged or unspecified criminal activity. The thread common to each of these references is the defense theory at trial. The defense contended that defendant had been "set up" by the police or persons working for the police and did not knowingly and intentionally possess ² a controlled substance. The complained of comments all occurred in trying to prove or disprove that defendant's name was brought to the authorities' attention by persons already incarcerated and not vice versa, or in attempting to show the possible bias of the defense witnesses. Admission of this evidence could be justified, by one theory or another,[87 MICHAPP 17] under the holding of People v. Spillman, 399 Mich. 313, ...