People v. Caldwell, Docket No. 27687

• Decision Date: 11 August 1977
• Docket Number: Docket No. 27687
• Citation: 261 N.W.2d 1,78 Mich.App. 690
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack Clair CALDWELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 1

261 N.W.2d 1

78 Mich.App. 690

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jack Clair CALDWELL, Defendant-Appellant.

Docket No. 27687.

Court of Appeals of Michigan.

Aug. 11, 1977.

Released for Publication Jan. 12, 1978.

Thomas L. Stringer, Dexter, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and ALLEN and FREEMAN, ^* JJ.

PER CURIAM.

Defendant appeals as of right from his armed robbery conviction, M.C.L.A. § 750.529; M.S.A. § 28.797. He alleges reversible error first, in the trial judge's refusal to grant a mistrial on the ground of a newspaper headline which appeared on the evening of the second day of defendant's trial. The newspaper headline stated, "Pizza Shop Hold-Up. I ought to kill you." A poll of the jury showed that none of the jurors had read the article. Defendant contends that the viewing of the headline itself by four jurors caused prejudice in that the headline alone, without a reading of the article, may have been misleading. The statement "I should have killed you" was a part of the trial testimony. The jurors would have regarded that statement in the context in which they heard it at trial. They could not have been misled. The trial judge did not abuse his discretion in refusing to grant a mistrial. See People v. Moore, 51 Mich.App. 48, 52, 214 N.W.2d 548 (1974), and cases cited therein.

Secondly, defendant contends that he was prejudiced by the prosecutor's statement in closing argument that money found on defendant and his companion at the time of arrest "could just have easily have come, and probably did come, from other armed robberies * * * ". The evidence discloses that approximately $165 was taken in the robbery of the pizza shop. When arrested, however, approximately $600 to $700 was recovered from the defendant and his alleged accomplice. During trial, the money was admitted into evidence.

It is indisputable that the prosecuting attorney has the right to draw inferences for the jury from the facts appearing in the record. People v. Morlock, 233 Mich. 284, 286, 206 N.W. 538 (1925). Not only may the prosecutor draw inferences but he may also comment upon the testimony in the case. People v. Cona, 180 Mich. 641, 147 N.W. 525 (1914). Moreover, the prosecutor may argue upon the facts and evidence that a witness is not worthy of belief. People v. Couch, 49 Mich.App. 69, 72, 211 N.W.2d 250 (1973), lv. den. 391 Mich. 755 (1973). In addition the prosecution may argue a case vigorously and even contend that the defendant is lying. People v. Cowell, 44 Mich.App. 623, 205 N.W.2d 600 (1973).

A review of that portion of the prosecutor's argument to which objection was made, when taken in its whole context, shows that he was debunking the defendant's story on the grounds that the defendant had admitted telling a lie to the police; had four felony convictions for breaking and entering; and that defendant's testimony was inconsistent...