Opinion
Docket No. 8024.
Decided March 30, 1971.
Appeal from Calhoun, Ronald M. Ryan, J. Submitted Division 3 February 4, 1971, at Grand Rapids. (Docket No. 8024.) Decided March 30, 1971.
Gilbert Sullivan was convicted of robbery armed. Defendant brings a delayed appeal. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John M. Jereck, Prosecuting Attorney, for the people.
Edward J. Hackett, for defendant on appeal.
Before: FITZGERALD, P.J., and V.J. BRENNAN and T.M. BURNS, JJ.
Defendant Gilbert Sullivan was tried by a jury and on April 11, 1966, he was convicted of robbery armed, a violation of MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). The defendant did not take the stand in his own defense. He was subsequently sentenced to serve 10 to 20 years in the state prison. Delayed leave having been granted, defendant now appeals from the decision of the court.
It is argued that references by one of the prosecution's witnesses to defendant's previous imprisonment was so prejudicial that the trial court erred in denying a motion for mistrial. It is a well-recognized rule in Michigan that it is highly prejudicial for the jury to be informed of a previous conviction of the defendant. People v. Fleish (1948), 321 Mich. 443; People v. Greenway (1962), 365 Mich. 547.
Based on the record before us, we concur with the Court in United States v. Smith (CA6, 1968), 403 F.2d 74, 77, which also addressed itself to remarks concerning the defendant's previous imprisonment. In its opinion, the Court stated:
"We conclude that in this case the cautionary instructions of the trial judge could not eradicate the prejudice from the minds of the jurors. This is not to hold that in all cases cautionary instructions are not effective to cure defects in trial procedure."
The instruction, in view of the facts of this case, was insufficient to remove any possible prejudice which might have existed in the jurors' minds.
Reversed and remanded.