Dеfendants Malchi White and Glenn Newson were convicted of breaking and entering an unoccupied building, with intent to commit larceny therein, by а Detroit Recorder’s Court jury after being tried jointly. MCLA 750.110; MSA 28.305. Both defendants were sentenced to *228 serve nine to ten years in prison. Defendants havе appealed as of right and their cases have been consolidated.
Defendant White raises five issues, while defendant Newson raises only one.
Initially, defendant White contends that the prosecutor impermissibly commented on his failure to testify. Defendant immediately objected, but the court gave no cautionary instruction. A review of the record indicates that defendant’s counsel initiated remarks in his сlosing argument about his client’s failure to testify. The prosecutor in his rebuttal commented on the defense remarks.
The objectionable rebuttal was in response to the following argument made by defense counsel:
"I didn’t see the necessity of putting him [White] on any witness chair and lеtting the slilled [sic] and shrewd prosecutor interrogate him under examination. There is always the possibility under fear and cross-examination that something might come out and might be misunderstood by you ladies and gentlemen of the jury.”
Whereupon, the prosecutor in rebuttal noted in part:
"That Mr. Miller [defense counsel] was afraid to put his man on the stand to subject him to my skilled cross-examination and he was afraid something might come out. My only comment is, ladies and gentlemen, had this happenеd, maybe the truth might come out.”
We fail to see what further prejudice was caused defendant White after his own counsel stated that "somеthing might come out and might be misun *229 derstood” if White had taken the stand, compared to the prosecutor’s remark that "maybe the truth might come out”. Both sides speculate.
The jury was well aware that defendant White had not testified. Defense counsel’s remarks could be interpreted by a jury as expressing concern that his client would incriminate himself. Of course bis intention was to parade the prosecutor’s sophistiсation against defendant’s supposed naiveté. The prosecutor’s rebuttal did not prejudice defendant White’s case. There is no rеversible error when the prosecutor’s remarks, even if otherwise improper, are "made primarily in response to matters previously discussed by defense counsel”. See
People v Pomranky,
Turning the coin defendant White next contends that he was denied effective assistance of counsel because his attorney argued his failure to testify thus canceling his constitutional fifth amendment right to silence. It appears that White’s trial counsel used his argument as part of valid trial strategy. There is no merit to defendant’s contention that this amounts to ineffective assistance of counsel. See
People v Garcia,
The last issue requiring any discussion is raised by both defendants White and Newson. They assert that their sentences of nine to ten years violate the provisions of the indeterminatе sentencing act, MCLA 769.8; MSA 28.1080, and the rule set forth in
People v Tanner,
*230 The indeterminate sentencing act, MCLA 769.8; MSA 28.1080 provides:
"When any person shall hereafter be convicted for the ñrst time of crime committed after this act takes effеct * * * the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided.” (Emphasis added.)
In People v Tanner, supra, at 690, the Supreme Court established the following rule under this act:
"Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper аs failing to comply with the indeterminate sentence act.”
The sentences in the present case are nine to ten years, clеarly contra to the Tanner "two-thirds” rule if it applies. The question is whether the rule applies to the defendants who have previous fеlony convictions. This is not a new question.
We adopt the following reasoning set forth recently by another panel of this Court in
People v Banks,
"It is apparent * * * that the Supreme Court [in People v Tanner] limited its holding that а minimum sentence exceeding two-thirds of the maximum is improper applies only to cases to which the indeterminate sentence act applies.
"The indeterminate sentence act, MCLA 769.8; MSA 28.1080, reads in part as follows:
" 'When any person shall hereafter be convicted for the ñrst time of crime committed after this act takes effect. [The сourt imposing sentence shall not fix a *231 definite term of imprisonment but shall fix a minimum term except as hereinafter provided.]’ Since defendant’s conviction for larceny in a dwelling house was defendant’s third conviction the court was not bound by the indeterminate sentence act and was free to sentence defendant as its discretion dictated. Absent an abuse of discretion, the trial court’s decision will not be disturbed. We find no abuse of discretion and defendant’s sentence [three to four years] shall stand.” (Emphasis in 73 Mich App.)
Cf. People v Ungurean,
We are aware of and undismayed by other decisions of this Court applying
Tanner
to defendants with prior convictions. Courts sometimes make mistakes. Even supreme courts. Sеe
People v Red-wine, supra, People v Bullock,
The plain language of the statute applies the indeterminate sentencing act to those who are first
*232
offenders. MCLA 8.3a; MSA 2.212(1). The general rules of statutory construction require that: "[e]very word, phrase, clause, and sentence of the provision to be construed must be given force and effect and no word, phrase, or clause shall be rendered nugatory”.
Chrysler Corp v Washington,
The courts, by adapting the rule of Tanner to fаctual situations involving prior offenders, are creatively expanding the scope and legal effect of Tanner. Tanner is inapplicablе because that ruling is precisely directed to sentences under the indeterminate sentencing act. To hold that the Tanner decision applies to multiple offenders would presuppose that the Legislature intended to do a useless thing when it inserted the words "convicted fоr the first time of crime”. To bind trial courts to the Tanner sentencing rule for all multiple offenders is illogical and those decisions which do so are еither prognosticating correctly or ignoring established canons of statutory construction.
If the Supreme Court wishes to expand the rule of Tanner to the instant facts, we think that further reasoning is rеquired and not mere reliance on Tanner in a memorandum opinion. See People v Haggitt, People v Jordan, supra. Until the Supreme Court does issue an explicit decision expanding Tanner to the instant facts, we feel frеe to follow the reasoning in People v Banks, supra. See also People v Ungurean, supra.
Defendant White has raised two other issues *233 relating to the trial court’s instructions to the jury. Defendant did not object, and a review of the record indicates no manifest injustice has resulted. Therefore, there is no reversible error. MCLA 769.26; MSA 28.1096.
Affirmed.