People v. Yarbrough

86 Mich. App. 105 (1978) 272 N.W.2d 345

PEOPLE
v.
YARBROUGH.

Docket No. 78-1618.

Michigan Court of Appeals.

Decided September 21, 1978.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

Carl Ziemba, for defendant on appeal.

Before: R.M. MAHER, P.J., and N.J. KAUFMAN and F.J. BORCHARD,^[*] JJ.

ON REMAND, ON REHEARING

PER CURIAM:

We granted the prosecutor's motion for rehearing in this cause on August 24, 1978, in order to reconsider our opinion in People v Yarbrough (On Remand), 84 Mich. App. 779; 270 NW2d 689 (1978).

This case was originally decided in People v Yarbrough, 78 Mich. App. 81; 259 NW2d 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conviction on the ground that the trial court had failed to address defendant's motion for mistrial which had been withdrawn and later renewed by defense counsel.^[1] On appeal by the prosecutor, the Supreme Court issued the following order: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 (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 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 NW2d 120 (1942), compare People v Greenway, 365 Mich. 547; 114 NW2d 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 recommended that he not be placed in the same block with Mr. Yarbrough". While we do not condone the prosecutor's question, and in fact suspect that had the prosecutor been better prepared, his witness would not have referred to defendant's incarceration, we do not find that this one remark necessitated the granting of a mistrial. By this time the jury already knew that defendant had been in prison, due to the foundational facts elicited previously at defense counsel's request. In addition, the trial court gave a second cautionary instruction regarding this matter at the conclusion of the proofs.

For the above reasons we find that refusal to grant defendant's renewed motion for a mistrial would not have been error. Since defendant's other allegations of error are also without merit, we affirm defendant's conviction.

Affirmed.

F.J. BORCHARD, J., did not participate.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] We adhere to the legal conclusions as stated in our original opinion with respect to the issue of the trial court's duty to consider defendant's motion for mistrial. Our opinion here is directed solely to answering the question posed by the Supreme Court, infra.