People v. McGee

282 N.W.2d 250, 90 Mich. App. 115, 1979 Mich. App. LEXIS 2140

Opinions

R. B. Burns, P.J.

Defendant appeals his jury-based conviction of felony-murder, murder during the perpetration or attempt to perpetrate a robbery, contrary to MCL 750.316; MSA 28.548.

Prior to defendant’s decision to testify, the prosecutor questioned a witness as follows:

"Q Now, did you know [defendant] prior to seeing him [in jail after his arrest]?

"A I have met him before in 1971 in the County Jail, also [sic], ”

The prosecutor should have anticipated the answer to his question and that a response would inform the jury of defendant’s prior conviction. It was his witness.

The fact of defendant and the witness having met once earlier in jail was in no way germane to the prosecution. There was no claim of conspiracy and, since defendant had not yet testified, his previous imprisonment was not admissible as bearing on credibility. That he did eventually take the witness stand is of no moment. He may have refrained from testifying but for the compulsion of this disclosure. Defendant’s request for a mistrial should have been granted. People v Greenway, 365 Mich 547; 114 NW2d 188 (1962).

Reversed.

Mackenzie, J., concurred.