People v. Mattice

38 Mich. App. 333 (1972) 196 N.W.2d 345

PEOPLE
v.
MATTICE

Docket No. 9413.

Michigan Court of Appeals.

Decided February 22, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Peter B. Capling, Prosecuting Attorney, for the people.

Richard L. Mattice, in propria persona.

Before: LESINSKI, C.J., and McGREGOR and QUINN, JJ.

QUINN, J.

A jury convicted defendant of breaking and entering an occupied dwelling with intent to commit larceny, MCLA 750.110; MSA 28.305. He was sentenced and he appeals.

After claim of appeal was filed but before defendant's brief was filed, his appointed appellate counsel was relieved of the assignment at the request of defendant. The trial court declined defendant's request for new appellate counsel, and defendant's brief was filed in propria persona.

Our review of the record convinces us that the three issues raised by defendant are so unsubstantial that discussion of them is not required. Review does disclose two errors committed by the prosecuting attorney at trial, which would have been apparent to adequate appellate counsel but not to defendant. Both of the errors are reversible errors under prior decisions of this Court and both relate to the question of fair trial, and one relates to a violation of a constitutional right of the defendant. Because of this and the possible infringement of defendant's right to appellate counsel, we depart normal procedure and consider issues not raised on appeal.

During the presentation of the people's case, the prosecuting attorney twice asked the deputy sheriff who investigated the case and arrested defendant, if the latter made any statement when arrested. The deputy sheriff responded in the negative to each question. During final argument, the prosecuting attorney stated:

"The officer, Robert Swackhamer, testified that Lester was involved in this and was arrested and properly warned and made no statement."

Defendant's constitutional right to remain silent was violated, People v Gisondi, 9 Mich. App. 289 (1967).

During cross-examination of defendant, the prosecuting attorney twice asked defendant about prior arrests, not arrests and convictions. The latter inquiry is proper; the former is not, People v Brocato, 17 Mich. App. 277, 302 (1969).

Reversed and remanded for a new trial.

All concurred.