People v. McGee — Opinion Summary (Michigan Court of Appeals, May 21, 1979)

Factual and Procedural Background

The defendant was convicted by a jury of felony-murder, murder during the perpetration or attempt to perpetrate a robbery, in violation of MCL 750.316; MSA 28.548. During the prosecution's examination of a witness, prior to the defendant's decision to testify, the prosecutor asked the witness whether he had known the defendant prior to seeing him in jail. The witness replied that he had met the defendant in 1971 in the county jail. The majority opinion holds that this answer disclosed the fact of the defendant's prior imprisonment, that the prosecutor should have anticipated the answer, and that the disclosure was prejudicial and not germane to the prosecution. The defendant's request for a mistrial was denied at trial; on appeal the majority concluded the mistrial should have been granted and reversed the conviction. A dissenting judge would have affirmed.

Legal Issues Presented

1. Whether a prosecutor's question that elicits a witness statement revealing the defendant's prior incarceration (here, that the witness had met the defendant in county jail in 1971) constitutes prejudicial error requiring mistrial.
2. Whether the failure of the trial court to give a cautionary instruction (after defense counsel had requested one but did not remind the court) constitutes reversible error in the context of the disclosed testimony.

Arguments of the Parties

Defendant's Arguments

• The disclosure that the defendant and the witness had met in county jail in 1971 revealed the defendant's prior imprisonment and was not relevant to the prosecution's case.
• The prosecutor, whose witness supplied the answer, should have anticipated the response and avoided eliciting it; the disclosure was prejudicial and warranted a mistrial.

Prosecution's (People's) Position as Reflected in the Record and Dissent

• The reference to the defendant's prior acquaintance with the witness in jail was inadvertent, fleeting, and not emphasized by the prosecution.
• The question asked by the prosecutor was reasonable and material to the credibility of the witness, who testified that the defendant had admitted stealing the murder weapon.
• The record does not indicate the prosecutor intended to elicit the reference to the 1971 imprisonment.
• Defense counsel also bore responsibility: after requesting a cautionary instruction the court asked counsel to remind it later; counsel did not remind the court, and therefore the absence of a cautionary instruction supports a finding of no reversible error.

Table of Precedents Cited

Court's Reasoning and Analysis

Majority (R.B. Burns, P.J.): The majority focused on the timing and source of the inquiry that produced the disclosure. The prosecutor, whose witness supplied the answer, "should have anticipated the answer" and therefore should have avoided eliciting testimony that disclosed the defendant's prior imprisonment. The majority found that the fact of the defendant and the witness having met once earlier in jail was "in no way germane to the prosecution." Because defendant had not yet testified at the time of the statement, the witness's reference to defendant's prior imprisonment was not admissible as bearing on credibility. The majority further observed that the defendant might have refrained from testifying but for that disclosure. On that basis the majority concluded that the trial court should have granted the defendant's request for a mistrial and reversed the conviction.

Dissent (Allen, J.): The dissent acknowledged that the reference to 1971 imprisonment was "unfortunate" but disagreed that it was reversible error in context. The dissent emphasized that the testimony at issue was fleeting, not emphasized by the prosecution, and that the record does not indicate the prosecutor intended to elicit it. The question was characterized as reasonable and material to the witness's credibility because the witness testified the defendant had admitted stealing the murder weapon and prior acquaintance could bear on that witness's testimony. The dissent distinguished Greenway by noting differences in the question asked, context, and resulting prejudice, and cited McQueen as a closer analogue in which a similar disclosure was held not to be error. The dissent also stressed the procedural posture regarding jury instructions: defense counsel had requested a cautionary instruction, the trial judge asked counsel to remind the court at the close of proofs, counsel did not remind the court, and no instruction was given. The dissent relied on authority placing responsibility on counsel (DerMartzex and Chism) to request instructions and concluded the failure to obtain a cautionary instruction supported a determination of no reversible error. The dissent would have affirmed the conviction.

Holding and Implications

Holding: The court, by the majority, reversed the conviction. The opinion's dispositive line is simply: Reversed.

Implications: The direct consequence of this decision is reversal of the defendant's felony-murder conviction on the ground that a witness's answer revealed the defendant's prior incarceration and that the prosecutor should have anticipated and avoided eliciting that answer; the majority concluded that a mistrial should have been granted. The opinion does not announce a new rule of law beyond relying on existing precedent (notably People v. Greenway) and thus does not purport to establish new broad legal precedent; it applies established precedent to the facts of this case. The dissent would have found the reference harmless in context and affirmed.