Opinion
No. 114715 (43).
May 12, 2000.
Appeal from the COA: 205329, Grand Traverse CC: 96-007208-FH.
By order of February 1, 2000, this Court ordered the prosecutor to file an answer to defendant's application for leave to appeal. The prosecutor's answer having been filed, the defendant's delayed application for leave to appeal from the April 2, 1999 decision of the Court of Appeals is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
The Court of Appeals has held that police officers have a special obligation not to provide unresponsive answers that venture into forbidden areas that might prejudice the defense. People v Holly, 129 Mich. App. 405, 415-416; 341 N.W.2d 823 (1983). However, any error in the admission of such testimony would be subject to a harmless error analysis. Here, untainted evidence linked defendant to the offense including (1) the tight time frame within which the checks were stolen, and cashed and defendant and his accomplice were found in possession of the stolen driver's license, and (2) defendant's fingerprint on one of the stolen checks. In the context of this untainted evidence, it does not affirmatively appear that the asserted error undermined the reliability of the verdict, i.e., that it is more probable than not that a different outcome would have resulted without the error. See People v Lukity, 460 Mich. 484, 495 (1999). Accordingly, I am convinced that any error in the admission of the unresponsive testimony was harmless.
I would grant leave to appeal in this case to consider whether defendant received a fair trial. At issue is the cumulative effect of three law enforcement officers testifying regarding defendant's prior crimes or instances of misconduct that were not charged in this case. A jury convicted defendant of two counts of uttering and publishing. See MCL 750.249; MSA 28.446.
During the trial, three law enforcement officers, while testifying for the prosecution, volunteered information. They related that defendant was the subject of another criminal investigation, that he had been in jail before, and that while in jail he had been cited for misconduct. The trial court denied defendant's motion for a mistrial, and the Court of Appeals affirmed in an unpublished per curium opinion.
Normally, a volunteered and unresponsive answer to a proper question is not a reason to grant a motion for a mistrial. People v Kelsey, 303 Mich. 715 (1942). However, our Court of Appeals has stated that police officers have a special obligation not to volunteer information that would prejudice the defense. People v McCarver (On Remand), 87 Mich. App. 12, 15 (1978). This is especially true when the evidence volunteered ties the defendant to another crime not at issue in the trial at which the officer is testifying. People v Deblauwe, 60 Mich. App. 103 (1975).
The "special obligation" that police officers have to avoid giving unresponsive testimony was breached in this case. Two police officers and one corrections officer inserted inadmissible information into the trial. In this case, other evidence implicated defendant. However, it is not clear that the effect of the inadmissible testimony did not alter the outcome of the trial. Therefore, I would grant leave to thoroughly consider that effect and to determine whether the trial court erred in not granting defendant's motion for a mistrial.
Cavanagh, J., concurs with the statement of Kelly, J.
Markman, J., not participating.