Defendant was convicted on January 29, 1980, of larceny in a building, MCL 750.360; MSA 28.592, following a jury trial. On March 17, 1980, defendant was sentenced to five years probation, with six months to be served in the St. Clair County jail. Defendant also was ordered to pay court costs in the amount of $200 and to reimburse the county in an amount not to exceed $300 for the costs of his court-appointed attorney. Restitution in the amount of $77.50 was also ordered. Defendant appeals as of right.
Dеfendant first argues that the prosecutor committed error requiring reversal by eliciting testimony from an investigating offiсer regarding defendant’s refusal to discuss the charged larceny until he had an opportunity to speak with an аttorney and in commenting on defendant’s silence in his closing argument. We agree.
*323 During trial the prosecutor examined Sheriffs Deputy Joseph Danna as follows:
"Q. [Prosecutor]: After you learned of Mr. Hoshowski’s involvement in this crime did you speak with him аbout it again?
"A. Yes, I did.
”Q. Was he willing to answer your questions?
"A. No, he did not want to talk to me until he got a lawyer.”
In the prosecutor’s closing argument, he remarked:
"How does Mark [Ernst] get involved with the police? Well, аfter Deputy Danna and Mr. Baresi and [defendant] have investigated the premises, [defendant] who initially according to the deputy was very cooperative, volunteering a lot of information, becomes more silent аnd secretive about the last evening’s events arid he says to the deputy, oh by the way, I was here. I was working on my car, and low and behold I was here with Mark Ernst.”
In
People v
Bobo,
"We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.”
Under
Bobo,
if a defendant
chooses
to exercise his right to remain silent, that silence cannot be used against him at trial.
People v Gerald Wells,
In the instant case it is clear that Danna advised defendant of his Miranda 1 rights before attempting to question him further about his involvement in the charged larceny. Although defendant initially wаs willing to talk, he merely repeated what he had told the officer on the morning following the incident. He then assеrted his Miranda rights and refused to answer any additional questions until he had an opportunity to meet with an attorney. The faсt that defendant refused to answer any additional questions after Danna learned of defendant’s involvement in thе crime was brought out through the officer’s testimony. This was error under Bobo since the jury may have drawn an inculpatory inferеnce from defendant’s refusal to submit to further interrogation. Although the error could be deemed harmless if Danna’s comment about defendant’s silence was unsolicited or was an unresponsive answer, no such claim can bе made here. The prosecutor knew that defendant had exercised his right to remain silent from the officer’s earlier testimony at the preliminary examination. Thus, the offensive answer cannot be considered an inadvertent remark. Moreover, in his closing argument, the prosecutor commented on defendant’s silence by stating that defendant had been initially cooperative but became ”more silent and secretive”. 2 We
*325
find that the reference to defendant’s
post-Miranda
silence cannot be deemed harmless error.
People v Hoye,
We also find thаt the prosecutor committed error by questioning defendant regarding a felony charge which had not resulted in а conviction and by erroneously stating in closing argument that defendant had been convicted of a felony but рled guilty to a misdemeanor. Moreover, the error was compounded when the prosecutor stated in closing argument that according to a certified copy of defendant’s convictions he had been cоnvicted of a felony but had pled guilty to a misdemeanor. This reference was not supported by evidence produced at trial and was a gratuitous reference, devastating to the defendant and factually false. The defense attorney made no objection to this reference and failed either to request that it be stricken with appropriate instructions to the jury or to *326 move for a mistrial. Our review of the entire record in this case brings us dangerously close to questioning the effectiveness of defense counsel, but, since we have аlready found error requiring reversal, we choose not to predicate reversal on that issue.
Reversed.
Notes
Miranda v Arizona,
It should be nоted that the prosecutor misrepresented Danna’s testimony somewhat in his closing argument when he indicated thаt defendant reluctantly told the officer that he had been working on his car with Mark Ernst on the evening of the robbery; thе record reveals that this information was voluntarily offered by defendant. The only *325 testimony regarding defendant’s reluctance to cooperate with the investigation was Danna’s comment concerning defendant’s refusаl to submit to further interrogation.
We note that the United States Supreme Court in
Jenkins v Anderson,