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11 Mich. App. 219

160 N.W.2d 790

People v. Camel

Michigan Court of Appeals

Decided April 25, 1968

Michigan Court of Appeals · decided 1968-04-25

Cited by 4 later decisions — most recently March 1973

4 state decisions

Key passage — most relied on by later courts

““Although unable to convince us that the evidence on which he was convicted should be suppressed because of an illegal search, we are nevertheless constrained to hold that the appellant is entitled to, and must have, a new trial because of the admission in evidence against him of improper prejudicial testimony. The federal agent, who was called in by the city police upon the arrest of appellant, testified that he questioned appellant regarding the marijuana found in and around the home. He testified that the appellant told him ‘that he had been smoking marijuana intermittently very seldom for the past four or five years.’ There was an immediate objection by counsel for the defense, together with a concession by the prosecuting attorney, that the witness’ remark was an improper one and that the reference to appellant’s smoking marijuana in the past should be excluded from the jury. Acting on the request of both counsel the trial court made the following ruling, ‘On suggestion or request of the District Attorney, and of the defendant’s counsel, of any admission or statement by the defendant about being a marijuana smoker at some previous time, is withdrawn from them, and stricken from the record.’ Not being satisfied that the ruling by the court could blot out from the jury’s mind the evidence improperly introduced respecting a totally disconnected and extraneous violation of the law by the appellant, appellant’s counsel moved for a mistrial, which was denied. It is hornbook th”

quoted by 1 later decision, including White v. State

““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 Jackson Prison.” 160 N. W. 2d at 790 .”

quoted by 1 later decision, including White v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1968-04-25

View the full empirical analysis of this case →

T. G. Kavanagh, J.

¶1Defendant was convicted by a jury of larceny in a building1 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:

¶2*221“Q. All right. Then do you recall the conversation that yon had after you advised him of his rights ?

¶3“A. Yes, sir. I asked him his name and address and such, and then he stated that he had got out of Jackson prison.”

¶4Defendant immediately asked that the jury he 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.

¶5A similar situation was before the Supreme Court in People v. Greenway (1962), 365 Mich 547. 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 ease being tried. The Court said (p 551):

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

¶7The Court in Greenwaybased 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 to 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 hearing2 was held to resolve the question. At the hear*222ing in response to a question by the assistant prosecutor as to the substance of the statement, the police officer testified:

¶8“He [defendant] stated that he had got. out of Jackson prison on the 20th — that would be April 22, 1966.”

¶9At 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.

¶10The people’s position is not supported by People v. Fleish (1948), 321 Mich 443. In that case the Supreme Court reaffirmed its commitment to the general rule that evidence of former convictions or offenses is inadmissible. However, in Fleishthe 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.

¶11In 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 *223the damage was done by this testimony the court should have granted the motion for mistrial.

¶12Reversed.

Levin, J., concurred with T. Gr. Kavanagh, J.

¶13CL 1948, § 750.360 (Stat Ann 1954 Kev § 28.592).

¶14 People v. Walker (On Rehearing, 1965), 374 Mich 331.

¶15 CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052),

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