People v. Nelson

273 N.W.2d 512, 86 Mich. App. 651, 1978 Mich. App. LEXIS 2625

Opinions

V. J. Brennan, J.

The defendant was charged with two counts of armed robbery, MCL 750.529; MSA 28.797, and was convicted after a jury trial of one count. The defendant was sentenced to 15 to 30 years in prison and appeals as of right. Three issues are raised on appeal, only one of which merits discussion.

The facts surrounding the defendant’s claim of prosecutorial error are set forth in the dissenting opinion.

Although we feel that the prosecutor’s comment on the defendant’s impecuniousness in the present case constituted error, we do not believe that such error mandates reversal upon application of the harmless error test. MCL 769.26; MSA 28.1096. See People v Ronald Green, 74 Mich App 601, 604; 254 NW2d 788 (1977).¹

At trial the defendant did not question the fact that the robbery took place but raised the defense of alibi. Three eyewitnesses were introduced who testified that they picked the defendant out of a lineup and then positively identified the defendant at trial as the robber. In addition no alibi witnesses testified in regard to the robbery charge upon which the defendant was convicted.

The reference to the defendant’s impecuniousness was brief and was not the subject of a prolonged effort by the prosecutor. Taking into account the brevity of the comment and the overwhelming evidence against the defendant, we hold the error harmless and affirm the defendant’s conviction.

Affirmed.

D. E. Holbrook, P.J., concurred.

Footnotes

1

Here the Court in applying the second prong of the harmless error test cited the "lengthy jury deliberations and the relative dearth of direct evidence implicating the defendant” and was unable to hold harmless the prosecutorial misconduct which included comment on defendant’s lack of employment.