Opinion
Docket No. 78-3537.
Decided November 7, 1978. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Sally M. Zack and Chris W. Dunfield, Assistants Prosecuting Attorney, for the people.
Taylor, Yampolsky, Struwin Hass, for defendant on appeal.
Before: R.B. BURNS, P.J., and T.M. BURNS and D.E. HOLBROOK, JJ.
ON REMAND
The underlying facts of this case are stated in our prior opinion, People v McCarver, 72 Mich. App. 311; 249 N.W.2d 403 (1976). In that initial assessment, a majority of the panel concluded that evidence of illegal marijuana possession or use by the defendant was improperly admitted in a prosecution for possession of amphetamines and reversed the conviction. On further appeal, that conclusion was held to be erroneous, People v McCarver, 403 Mich. 376; 269 N.W.2d 186 (1978), and the case returned to us:
"[F]or consideration of the question of whether the testimony of the Federal agent and the state police detective, standing alone, or when combined with other issues raised by the defendant in the Court of Appeals but not discussed by that Court, served to deny the defendant a fair trial."
We proceed with that task.
Within a single issue, defendant claims he was deprived of a fair trial by testimonial references to the fact that he had a previous conviction and unspecified, uncharged criminal activity. Because different considerations apply to these points, we discuss these instances in two groups.
The first incident is described in both our earlier opinion and the opinion of the Supreme Court. In response to the prosecutor's inquiry concerning what the authorities were looking for when the search warrant was executed, the agent from the Federal Bureau of Alcohol, Tobacco Firearms responded: "We were searching for firearms which were illegal by virtue of their possession by Mr. McCarver who was a convicted felon and certain narcotics or suspected narcotic substances."
Prior to trial, the trial court had granted defense counsel's motion to suppress reference to defendant's 1959 conviction for breaking and entering with intent to commit larceny for purposes of impeachment if defendant should choose to take the stand.
Our courts have recognized that prosecutors and police witnesses have a special obligation not to venture into forbidden areas of testimony which may prejudice the defense. If an officer brings out the fact that a defendant has previously been convicted or charged with crime, even if the answer could be considered nonresponsive, reversible error will have occurred. People v McCartney, 46 Mich. App. 691; 208 N.W.2d 547 (1973). This Court has consistently condemned bringing a defendant's prior record to the jury's attention where that information is not properly admissible for impeachment purposes. See, e.g., People v Sullivan, 32 Mich. App. 181; 188 N.W.2d 247 (1971), People v Thomas Jones, 48 Mich. App. 470; 210 N.W.2d 497 (1973), People v Deblauwe, 60 Mich. App. 103; 230 N.W.2d 328 (1975).
Different considerations might apply had the answer been in response to a question from defense counsel or had the answer come from someone other than a police officer. See, People v Fisher, 77 Mich. App. 6; 257 N.W.2d 250 (1977), lv den 402 Mich. 811 (1977), People v Chambers # 1, 64 Mich. App. 311; 236 N.W.2d 702 (1975), lv den 399 Mich. 850 (1977).
Given the trial court's order suppressing reference to defendant's prior conviction, which was fully justified, and the special duty of prosecutors to steer police witnesses clear of just such responses, we would rest reversal squarely on this point. The fact that defendant was a convicted felon was not relevant to the issues in this case, regardless of any possible relevance in the Federal prosecution.
Defendant also complains of six other separate references by various prosecution and defense witnesses to uncharged or unspecified criminal activity. The thread common to each of these references is the defense theory at trial. The defense contended that defendant had been "set up" by the police or persons working for the police and did not knowingly and intentionally possess a controlled substance. The complained of comments all occurred in trying to prove or disprove that defendant's name was brought to the authorities' attention by persons already incarcerated and not vice versa, or in attempting to show the possible bias of the defense witnesses. Admission of this evidence could be justified, by one theory or another, under the holding of People v Spillman, 399 Mich. 313; 249 N.W.2d 73 (1976), that evidence admissible for one purpose is admissible, notwithstanding the fact that it may be inadmissible if introduced for another purpose. We would not rest reversal on these other references to criminal activity.
The statute provides that it is unlawful for any person knowingly or intentionally to possess a controlled substance, MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The information in this case charged that defendant did knowingly and intentionally possess a controlled substance. The trial court originally instructed the jury in accordance with the statute, but upon defendant's request instructed the jury that it would have to find the defendant knowingly and intentionally possessed a controlled substance as was charged in the information.
The final issue which must be discussed is whether defendant was deprived of a fair trial by the fact that four of the members of the jury which decided his guilt had also been members of the jury which convicted Ricky Miller, a defense witness, for arson.
Miller was one of several individuals to testify that while in jail awaiting trial on an unrelated offense, he had been approached by officers who promised him some consideration if he would aid in securing a conviction of McCarver on some unspecified charge.
The fact that several prospective jurors had earlier been members of Miller's jury panel was brought to light during voir dire. The court questioned each of these jurors to determine if they could impartially deal with Miller's testimony in light of their prior contact with him. The one juror who was unsure of his impartiality was excused. The four other jurors involved each affirmed that they would consider this case and Miller's testimony impartially. Defense counsel did not attempt to challenge the remaining four jurors either for cause or peremptorily.
Defendant's only allegation is that the trial court had a duty to be assured that the jurors had not formed an opinion about the defendant from their knowledge of one of his witnesses. From our review of the record, we conclude that the trial court did exactly what defendant had asked. There was no error.
Reversed and remanded for new trial.