The opinion
Beasley, J.
(dissenting). I dissent. Lack of prejudice and failure to make timely objection should preclude reversal for defendant-appellant, Clyde Poole. The same considerations apply to defendant-appellant, Tyrone Norris, and, in addition, application of People v Bobo, 390 Mich 355 ; 212 NW2d 190 (1973), in his context would represent an unwarranted extension of that case’s rule.
This case arises from a purse-snatching-mugging of a middle-aged woman in the early morning hours of February 8, 1975. The prosecution’s theory was that two men and two women were involved in the robbery. One woman, Denise VanBuren, was granted immunity and the other three *368 defendants, Clyde Poole, Tyrone Norris and Elaine Curtis, were charged with unarmed robbery and tried. The defendants asserted an alibi defense. The jury found all three defendants guilty as charged. Defendant Curtis received three years probation. Defendants Poole and Norris were sentenced to prison terms of 3-1/2 to 15 years and 5 to 15 years respectively; defendants Poole and Norris now appeal.
The issue in regard to defendant Poole arises from the following testimony (cross-examination of defendant Poole by the prosecutor):
"Q Apparently, you were arrested about five days after this happened?
* * *
"Q Did you tell the police at that time where you were at?
"A I can’t remember.
"Q Can’t remember?
"A At the time, I couldn’t.
"Q Excuse me?
"A They really didn’t ask me.
"Q You’re sure about that?
"A Yes.
"Q Did you ever tell anybody you were at home, instead?
"A Sir?
"Q Did you ever tell anybody that you were at home instead of the Mark Three?
"A No, sir.
"Q Never told anybody that?
"A No, sir.
"Q You’re under oath.
"A Yes.”
Under People v Bobo, supra, the prosecutor erred in making reference to defendant Poole’s *369 failure to tell his alibi to the police when he was arrested. However, the inquiry then becomes whether such constitutes reversible error. People v Ivory 64 Mich App 537, 539 ; 236 NW2d 521 (1975), lv den, 396 Mich 828 (1976). In my opinion, it does not. It did not prejudice defendant Poole and, therefore, was harmless error.
A review of the whole record in this case shows that the proofs against all three defendants were overwhelming. Particularly damaging was the testimony of the witness who had been granted immunity. That testimony set forth not only the essential elements of the charged offense, hut also added convincing details like the previous name of the victim which the witness saw on a check book in the victim’s purse while the purse was in defendants’ possession. Confronted with such evidence, defendant Poole’s total defense was his own alibi testimony; none of his alibi witnesses were called. In this context, I cannot see a reasonable possibility that the error now raised was a contributing factor to defendant Poole’s conviction. I would, therefore, treat it as harmless error. People v Ivory, supra.
However, a reversal should not be granted in regard to defendant Poole for another reason. Defendant Poole neither moved for a mistrial nor objected at trial to the testimony in question. He also raised no such question on appeal. The repeated failure of the defendant to raise this issue can be viewed in two ways. One, counsel for defendant has deliberately waived the issue; given the nature of the right waived and the tactical reasons which might lead an experienced trial counsel to waive it, I am of the opinion that such a waiver should not now be disturbed. See, People v Degraffenreid, 19 Mich App 702 ; 173 NW2d 317 *370 (1969). Two, counsel for defendant mistakenly overlooked the issue; given the previously discussed lack of prejudice to defendant, such a mistake does not require reversal. People v Degraffenreid, supra.
The facts concerning defendant Norris are substantially different from those previously recited concerning defendant Poole. Defendant Norris, like defendant Poole, had filed a list of alibi witnesses, had presented none of them, 1 and had given alibi testimony on his own behalf. However, the prosecutor’s questions to defendant Norris are different from those just reviewed (prosecutor’s cross-examination):
"Q Have you ever talked to Vernon [Vernon Thomas is a listed alibi witness for defendant Norris] about this?
"A No, not in * * * to any depth or anything like that.
"Q Did you talk to him at all about this?
"A Not that I recall.
"Q Did you ever talk to anyone about this matter?
"A Yeah, through letters, you know.
"Q Did you ever tell anybody that you were drinking and playing cards that night?
"A Did I ever tell anyone?
"Q Yes.
"A I didn’t see any importance in telling anyone, you know.
"Q After you were arrested, I mean?
"A After I was arrested, no. I wasn’t—
"Q Did you go out on your own to tell anyone?
"A No.
"Q Why was that?
"A Because I didn’t see any reason to until, you *371 know, after time for notice to come to court. I mean, I wasn’t questioned when I was picked up or anything.
"Q You just figured to wait until we come to court?
"A Yes. I mean, I haven’t any other alternative but to wait until I came to court.
"Q Did you try to contact anyone?
"A No, no one but my lawyer.
"Q Excuse me, I am sorry, I didn’t hear.
"A I mean, never talked to anyone except, you know, except for my lawyer.”
On redirect by defense counsel, reference was made for the first time to the police as follows:
"Q Tyrone, the police didn’t ask you for a statement, did they?
"A No, they didn’t.
"Q And, I believe, the Prosecutor asked you if you had communicated for—memory of that incident to anyone, with anyone else. Did you communicate that in writing to anyone, or by letter?
"A I mean, from the County Jail, I did.”
Since no direct reference to the police is made by the prosecutor, his questions can be viewed in two different ways. One way to interpret the questions is as a cross-examination of defendant concerning his listed alibi witnesses, one of whom was the mentioned Vernon. Contrivance of alibi testimony by defendant’s prompting of prospective witnesses would be a legitimate object of prosecutorial inquiry. Such questions can be answered without reference to defendant’s silence in the presence of arresting officers, etc. Such questions to a defendant should, therefore, be allowed in this area just as they would be if any other witness were being questioned. If Bobo, supra, is to be applied in this context, then the case is being extended far beyond its birthplace in custodial interrogation type *372 settings. Such an extension, I believe, would be both inadvisable and unwarranted.
The prosecutor’s questions can also be interpreted as a thinly veiled infringement on defendant Norris’ constitutional right to remain silent when arrested. 2 However, even when read in this fashion, reversal should not be granted on this record. The same considerations of overwhelming evidence and harmless error apply to defendant Norris as they did to defendant Poole. However, in regard to defendant Norris, a few additional comments are in order concerning the matter of making a timely objection.
As already has been noted, defendant Poole never took any steps to preserve the issue concerning the prosecutor’s questions. Defendant Norris did make a belated motion for mistrial the day after the questions were asked and after all defendants had rested their cases. The response of the trial judge perfectly pinpoints both the measure of merit underlying the motion and the problems associated with the delay in making it:
"THE COURT: Well, the Court feels that there was a very incidental and low-key reference to the fact that the Defendant Norris did not mention alibi to the police —or alibi witnesses. There was no objection made at the time, no motion to strike the answer, and the Court at this late date is not disposed to grant a motion for mistrial on this ground.
As a matter of fact, it seems to me that to emphasize this facet of the testimony by a cautionary instruction would probably confuse the Jury and would place undue emphasis on an aspect of the case that should not be emphasized; so the motion for a mistrial is denied, and Counsel may formally request a cautionary instruction if they want to prepare one and present it to the Court.
*373 I will then decide at the appropriate time whether or not to give such instruction.
Anything further?”
In addition, the court’s instructions included the following:
“The Defendants are not required to prove their innocence. The Defendant in a criminal case is not bound to explain his side of the case. The fact that a Defendant did not avail himself of any opportunity to discuss this case with the police should not be permitted by you to prejudice him in any way. It should not be considered as evidence of his guilt or innocence, and failure to discuss his or her side of the case with the police is not even a circumstance against such defendant and no inference of guilt can be indulged in by the jury on account of such failure on his part. A Defendant is not bound to explain his side of the case.”
All the defendants received the benefit of this instruction. On this record, and especially in the absence of timely objection, none of them deserved more.
All other issues that have been raised are without merit.
I would affirm.
Vernon Thomas is listed on the information as a witness and was called and offered to counsel for defendants for cross-examination. Each cross-examined him.
US Const, Am V; Const 1963, art 1, § 17.