Opinion
Docket No. 24451.
Decided November 8, 1976.
Appeal from Berrien, Julian E. Hughes, J. Submitted October 5, 1976, at Grand Rapids. (Docket No. 24451.) Decided November 8, 1976.
Christopher Johnson was convicted of carrying a concealed weapon. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Sally M. Zack, Assistant Prosecuting Attorney, for the people.
Roger L. Wotila, Assistant State Appellate Defender, for defendant.
Before: R.B. BURNS, P.J., and D.E. HOLBROOK and T.M. BURNS, JJ.
Defendant was convicted by a jury of carrying a concealed weapon in violation of MCLA 750.227; MSA 28.424.
One of the alleged errors raised by the defendant merits discussion.
During the cross-examination of the defendant, the prosecutor established the fact that the defendant had not made any statement to the police at the time of his arrest. This was in violation of People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973), which held that a witness's silence at arrest may not be used except to contradict his assertion that he did make a statement.
Ordinarily such a tactic would call for a peremptory reversal. However, the defendant further testified that he had a gun in his possession at the time of his arrest. Therefore, we hold that the error was harmless beyond a reasonable doubt.
Affirmed.
D.E. HOLBROOK, J., concurred.
In People v Swan, 56 Mich. App. 22; 223 N.W.2d 346 (1974), this Court held that the admission into evidence of the fact that the defendant exercised his right to remain silent at the time of his arrest was harmless error because the weight and nature of the evidence against the defendant was such that there could be no reasonable doubt of his guilt. Despite that ruling, this Court suggested that a different result might be reached in future cases:
"In finding the error harmless in this case, we wish to emphasize that we do not condone conduct which directly or indirectly restricts or penalizes the exercise of the constitutional right to remain silent in the face of accusation. People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973). We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused's silence or that clear violations of the principle arise from inadvertence. Deliberate violations of this rule may lead us to reverse convictions even where evidence might be overwhelming. The prosecutor who comments, or elicits comment, on a defendant's silence thus risks the loss of a perfectly good case for no reason." People v Swan, supra, at 35.
In People v Patricia Williams, 63 Mich. App. 531, 536-537; 234 N.W.2d 689 (1975), that warning was given effect:
"Defendant is correct in asserting that it was error for the prosecution to introduce testimony regarding her exercise of the right to remain silent at arrest. We have long held that the introduction of such testimony infringes on the privilege against self-incrimination. People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973), People v Bigge, 288 Mich. 417; 285 N.W. 5 (1939), People v Jablonski, 38 Mich. App. 33; 195 N.W.2d 777 (1972).
* * *
"The plaintiff now concedes the error of the testimony and cross-examination to which defendant objects. Plaintiff would have us hold, however, that the errors were harmless because of overwhelming evidence against defendant. We decline to reach the question of whether there was sufficient evidence to render these errors `harmless beyond a reasonable doubt', for they fail under the inquiry which must precede that question. This initial inquiry is whether these errors were unduly `offensive to the maintenance of a sound judicial process.' People v Mobley, 390 Mich. 57, 65; 210 N.W.2d 327, 332 (1973), People v Swan, 56 Mich. App. 22; 223 N.W.2d 346 (1974), People v Wichman, 15 Mich. App. 110; 166 N.W.2d 298 (1968). We find under the circumstances of this case that they were.
"Reversed and remanded."
The error in this case was particularly blatant; the prosecutor's inquiry was both unnecessary and uninvited. I accordingly vote to reverse the conviction.