Opinion
Docket No. 21346.
Decided September 24, 1975. Leave to appeal denied, 396 Mich ___.
Appeal from Recorder's Court of Detroit, Susan D. Borman, J. Submitted June 18, 1975, at Detroit. (Docket No. 21346.) Decided September 24, 1975. Leave to appeal denied, 396 Mich ___.
Larry Ivory was convicted of second-degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Alvin C. Sallen, for defendant.
Before: T.M. BURNS, P.J., and QUINN and M.J. KELLY, JJ.
Defendant was tried on a charge of first-degree murder, MCLA 750.316; MSA 28.548. The jury found him guilty of second-degree murder, MCLA 750.317; MSA 28.549 on June 4, 1974. He was sentenced and he appeals on two issues:
1. The cross-examination of defendant by the prosecuting attorney and the latter's comments during closing argument violated defendant's constitutional right to remain silent and created prejudicial error.
2. The trial court's instruction to the jury on the prosecuting attorney's duty to produce a res gestae witness was erroneous.
It is not disputed that defendant killed the victim, Emma Montgomery. She died of nine stab wounds. The defense was self-defense.
During his direct examination, defendant testified that the victim cut his finger and his boot with a knife during the conflict. During cross-examination, he was asked if he had shown the cuts on his finger and on his boot to the police. Defendant's answer was that he had not. This cross-examination did not violate defendant's right to remain silent.
However, the following cross-examination:
" Q. Did you talk to any detectives in charge of the case?
" A. No.
" Q. You never talked to one?
" A. They wanted me to make a statement, but I didn't have to make one."
does violate defendant's right to remain silent and does constitute error. People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973). The inquiry becomes whether it is reversible error. As stated in People v Swan, 56 Mich. App. 22, 31; 223 N.W.2d 346, 351 (1974):
"Despite the constitutional dimensions of the error, if it did not in fact prejudice the defendant, then it may be held harmless."
Our review of this record convinces us that there is no reasonable possibility that this short invasion of defendant's right to remain silent contributed to his conviction. We find no other reference to this testimony anywhere in the record, and our finding is that the error was harmless beyond a reasonable doubt.
The second issue was not saved for review. Defendant not only failed to object to the instruction he attacks on appeal, GCR 1963, 516.2, he approved it at trial. No manifest injustice is present.
Affirmed.