(dissenting). I disagree with both of the majority’s bases for reversal and would affirm defendant’s convictions.
In finding defendant guilty of armed robbery, the tried court stated in part:
The testimony of the complainant was that there were two guns, that both people had guns, they both participated in the robbery, they both got into the car and drove the car off. Mr. Flowers and Mr. Smith were seen in the complainant’s car, and they both took off and ran. At no time did Mr. Smith state to the police, there’s been no testimony that, ”Mr. Flowers did it, I was just there, and he forced me to go along.” That just came out today, in court. So the Court doesn’t believe his testimony.
Defendant characterizes the trial court’s statements as a "typical” case of a defendant’s silence being used against him at trial and argues that his convictions must be reversed under the rule announced in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). To the contrary, my review of the cases construing Bobo reveals that the "typical” case involves a prosecutor improperly cross-examining a defendant regarding his silence or improperly questioning a third person, often a police officer, about the defendant’s silence. See, for example, People v Alexander, 188 Mich App *35996; 469 NW2d 10 (1991), People v Gilbert, 183 Mich App 741, 747; 455 NW2d 731 (1990) (the rule from Bobo prohibits a prosecutor from using against a defendant at trial the defendant’s exercise of the Fifth Amendment right to remain silent), and People v Finley, 177 Mich App 215; 441 NW2d 774 (1989).
Here, however, there is no allegation that the prosecutor improperly questioned or commented concerning defendant’s right to remain silent. Rather, this case involves a comment made by the trial court while stating its findings of fact in a bench trial and may be distinguished from the Bobo line of cases on that ground. Further, I do not discern any constitutional implications in the trial court’s statements. The trial court’s statement could be interpreted as merely pointing out that there had been no trial testimony by the police or anyone else corroborating defendant’s story. To the extent that the court was referring to prearrest silence and postarrest, pre-Miranda silence, defendant waived the privilege against self-incrimination when he took the stand. People v Sutton, 436 Mich 575, 592; 464 NW2d 276 (1990). Finally, in light of the victim’s unwavering testimony that defendant had a gun and encouraged codefendant Flowers to shoot her, any error that may have occurred was harmless. See Gilbert, supra, pp 747-748.
Nor would I reverse on the ground that the prosecutor did not file a brief or otherwise defend. Such a procedural rule, if applied uniformly, would result in the unnecessary reversal of validly obtained convictions. It therefore would constitute an even greater waste of this state’s already taxed law enforcement, prosecutorial, and judicial resources than that occasioned by this Court’s review of both sides of an issue on appeal.
I would affirm.