People v. Yarbrough, Docket No. 78-1618

• Decision Date: 21 September 1978
• Docket Number: Docket No. 78-1618
• Citation: 86 Mich.App. 105,272 N.W.2d 345
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hendrick YARBROUGH, Defendant-Appellant. 86 Mich.App. 105, 272 N.W.2d 345
• Court: Court of Appeal of Michigan — District of US

Page 345

272 N.W.2d 345

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hendrick YARBROUGH, Defendant-Appellant.

Docket No. 78-1618.

86 Mich.App. 105, 272 N.W.2d 345

Court of Appeals of Michigan.

Sept. 21, 1978.

Released for Publication Dec. 18, 1978.

[86 MICHAPP 106] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Maura Corrigan, Asst. Pros. Atty., for plaintiff-appellee.

Before Maher, P. J., and KAUFMAN and BORCHARD,^* JJ.

PER CURIAM.

We granted the prosecutor's motion for rehearing in this cause on August 24, [86 MICHAPP 107] 1978, in order to reconsider our opinion in People v. Yarbrough (On Remand ), 84 Mich.App. 779, 270 N.W.2d 689 (1978).

This case was originally decided in People v. Yarbrough, 78 Mich.App. 81, 259 N.W.2d 248 (1977). The facts are stated in the original opinion. This Court reversed defendant's conviction on the ground that the trial court had failed to address defendant's motion for mistrial which had been withdrawn and later renewed by defense counsel. ¹ On appeal by the prosecutor, the Supreme Court issued the following order:

"Leave to appeal is considered April 28, 1978, and pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, the Court of Appeals decision is vacated and the case is remanded to the Court of Appeals for consideration of the question of whether, assuming Pro arguendo that the trial court should have entertained defendant's final request for mistrial, it would have been error for the trial court to refuse to grant said motion. Unless it would have been error for the trial court to refuse to grant the motion, reversal on this basis should not be ordered. In addition, the matters raised by defendant in his application for cross-appeal are remanded to the Court of Appeals for such further consideration as the Court of Appeals shall deem necessary. This Court does not retain jurisdiction." 402 Mich. 920, 271 N.W.2d 430 (1978).

Addressing the above question, we find that it would not have been error to refuse to grant the motion for mistrial. The basis for this motion was that three references to defendant's incarceration were made during the trial. The first reference was made by a prosecution witness who, when [86 MICHAPP 108] asked on direct examination whether he knew the defendant, answered, "Yes, I met him in the penitentiary, he locks (sic) four cells from me." The prison reference here was a nonresponsive, volunteered answer to a proper question. It was not cause for granting a mistrial. See People v. Kelsey, 303 Mich. 715, 717, 7 N.W.2d 120 (1942), compare People v. Greenway, 365 Mich. 547, 114 N.W.2d 188 (1962).

The second reference to defendant's incarceration occurred during the reading of witness Wilson's preliminary examination testimony to the jury. The prosecutor asked Wilson to relate a conversation he had had with the defendant, and defense counsel objected, demanding a foundation as to time and place. No error resulted when this necessary foundation was supplied, especially since a cautionary instruction was given by the court concerning the use of the testimony.

The third mention of prior time in jail took place when the prosecutor asked Wilson's parole officer whether he had made any recommendations regarding Wilson. The parole officer answered, "I...