People v. Sain, Docket No. 62984
| Decision Date | 10 December 1979 |
| Docket Number | Docket No. 62984 |
| Citation | 407 Mich. 412,285 N.W.2d 772 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert SAIN, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Don W. Atkins, Asst. Pros. Atty., Detroit, for the people.
Maxwell & Sniderman, Detroit, for defendant-appellant.
Charged with breaking and entering with the intent to commit larceny, 1 the defendant was convicted by a jury of entering without breaking with the intent to commit larceny. 2 Because the record discloses that the prosecutor utilized a portion of his closing argument to improperly comment upon the defendant's exercise of his right to remain silent at the time of his arrest, we reverse.
Two policemen, having been called by a postman, went to the back door of a four-family dwelling and observed the defendant and his son, in the words of the policeman, "disassembling the stove". The building was a vacant one, and its owner was rehabilitating it for future rentals. The arresting officer had watched the two men work with the stove for three to five minutes before he entered the building and made the arrests.
The defendant did not testify. However, the defense presented evidence from defendant's son, Michael Sain, to the effect that he and the defendant had been driving in the neighborhood, that they saw the abandoned building, heard noises emanating from it, and went inside in hope of buying a door jamb from persons who were working in the building.
During the course of the examination of one of the arresting officers, the prosecutor asked the following question and received the following response:
Later, during the prosecutor's closing argument, it was stated:
(Emphasis added.)
The defendant argues that the above-quoted colloquy and closing argument violated the rule announced in People v. Bobo, 390 Mich. 355, 359, 212 N.W.2d 190, 192 (1973). In Bobo we stated:
The Court of Appeals majority, in affirming the defendant's conviction, noted first of all that no objections were lodged at trial with regard to the examination of the police officer or the prosecutor's closing argument. Nevertheless, the majority found Bobo error but concluded that upon the record it was harmless. Judge Kaufman, in dissent, also found Bobo error but could not agree that the error was harmless. Judge Kaufma...
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...Robeson v. State, 285 Md. 498, 403 A.2d 1221 (1979); Commonwealth v. Grieco, 5 Mass.App. 350, 362 N.E.2d 1204 (1977); People v. Sain, 407 Mich. 412, 285 N.W.2d 772 (1979); State v. Callahan, Minn., 310 N.W.2d 550 (1981); Cooley v. State, Miss., 391 So.2d 614 (1980); State v. Walker, Mo.App.......
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