People v. Clark

Decision Date06 January 1975
Docket Number16982,Docket Nos. 17126,No. 1,1
Citation225 N.W.2d 758,57 Mich.App. 339
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Lee CLARK and John Joseph Collins, Defendants-Appellants
CourtCourt of Appeal of Michigan — District of US

David Harris, Detroit, for Clark.

James R. Neuhard, State App. Defender, Detroit, for Collins.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Luvenia D. Dockett, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and T. M. BURNS and CARLAND,* JJ.

T. M. BURNS, Judge.

Defendants were convicted by a jury on January 31, 1973, of assault with intent to murder. M.C.L.A. § 750.83, M.S.A. § 28.278. On February 21, 1973, both defendants were sentenced to 30 to 50 years imprisonment with appropriate credit for time already spent in jail. Defendants appeal as of right alleging that numerous errors were committed during the course of their trial. Further facts will be presented in our discussion of the issues.

Defendant Collins first contends that the trial court erred when it denied his request to sever his trial from that of defendant Clark. We find no error. In the absence of an affirmative showing that a joint trial prejudiced substantial rights of the defendant, denial of a motion for separate trials will not be disturbed on appeal. People v. Rowls, 28 Mich.App. 190, 194, 184 N.W.2d 332 (1970), People v. Schram, 378 Mich. 145, 142 N.W.2d 662 (1966). Under the facts of the present case, the denial of the request for separate trials was well within the discretion that the Legislature has vested in the trial court. M.C.L.A. § 768.5, M.S.A. § 28.1028; see People v. Foster, 51 Mich.App. 213, 215, 214 N.W.2d 723 (1974).

Defendant Collins also claims that the trial court erred in refusing to grant his motion for mistrial when co-defendant Clark introduced evidence allegedly indicating that both defendants wanted to plead guilty but that the prosecutor would not consider such a plea. At the beginning of the trial, the trial court ruled that the evidence in question was inadmissible, and specifically instructed counsel for defendant Clark to that effect. Notwithstanding this fact, Clark's attorney proceeded to introduce evidence with the intent to indicate to the jury that one or both of the co-defendants had offered a plea of guilty which the prosecutor had rejected. The trial court, in accordance with its prior ruling, ruled this evidence inadmissible. While we are of the opinion that the actions of defendant Clark's counsel were improper, we do not feel that his actions make a mistrial necessary.

The test for a mistrial motion is not whether there were some irregularities but instead did the defendants have a fair and impartial trial. People v. Foster, Supra, People v. Watson, 307 Mich. 596, 606, 12 N.W.2d 476, 480 (1943). After reviewing the record carefully, we are of the opinion that the actions of counsel for defendant Clark did not deny defendant Collins a fair and impartial trial and, therefore, it was not error to deny the motion for mistrial. The instructions of the court at the conclusion of the trial were sufficient to inform the jury on how to evaluate what was presented to them. If defendant Collins felt that either an immediate cautionary instruction or further final instruction to the jury was necessary, a request should have been made. See People v. Foster, Supra, People v. Peck, 39 Mich.App. 150, 197 N.W.2d 346 (1972). Therefore, since defendant Collins was not denied a fair and impartial trial, the trial court did not commit reversible error when it denied his motion for a mistrial. People v. Bennett, 52 Mich.App. 742, 749, 218 N.W.2d 407 (1974).

Next, both defendants assert that numerous remarks of the prosecutor during closing and rebuttal argument were so prejudicial as to deny defendants a fair and impartial trial. However, defendants objected to only one of these statements. The question of the appropriateness of the other statements is not now properly before us, since we are of the opinion that an objection and appropriate instruction could have cured any alleged prejudice resulting from the remarks in question. People v. Harrell, 54 Mich.App. 554, 559, 221 N.W.2d 411 (1974), People v. McLendon, 51 Mich.App. 543, 215 N.W.2d 742 (1974), People v. Pacely, 51 Mich.App. 67, 214 N.W.2d 561 (1974). The statement of the prosecutor to which an objection was properly made only involved a comment on an inference which could logically be drawn from the evidence. People v. Cunningham, 21 Mich.App. 381, 175 N.W.2d 781 (1970), lv. den. 383 Mich. 809 (1970). We find no error.

The next contention raised by defendants is that the trial court erred in its instructions to the jury when it included a charge of aiding and abetting. Defendants argue that since the information filed by the prosecutor never included a charge of aiding and abetting, the charge was erroneous and resulted in a denial of due process.

We disagree. We consider this Court's statement in People v. Hooper, 50 Mich.App. 186, 191--192, 212 N.W.2d 786, 788 (1973), lv. den. 391 Mich. 808 (1974), to be dispositive of this issue:

'The first claim of error raised on appeal is that the information charged the defendant with larceny from a building but the trial court instructed the jury on aiding and abetting, despite the fact that he was not charged, in the information, as an aider and abettor. It is contended now that this procedure resulted in a denial of due process since he was not given notice of the charges against him.

'We do not agree. It is well settled that an aider and abettor may be indicted, tried, and on conviction punished as a principal and no denial of due process results from charging an aider and abetter as a principal. People v. Lamson, 44 Mich.App. 447, 205 N.W.2d 189 (1973); People v. Palmer, 42 Mich.App. 549, 202 N.W.2d 536 (1972); People v. Dockery, 20 Mich.App. 201, 173 N.W.2d 726 (1969); People v. Weatherspoon, 6 Mich.App. 233, 148 N.W.2d 891 (1967).'

The next contention raised by defendant Collins is that his conviction must be reversed due to the prosecutor's reference to prior misconduct which did not result in conviction.

Defendant Collins failed to object to any of the allegedly improper questions, and this precludes appellate review unless a manifest injustice is shown. People v. Hooper, Supra, People v. Goodwin, 40 Mich.App. 709, 199 N.W.2d 552 (1972). The questions posed by the prosecutor related to a defense witness's failure, when he was filling out a form to purchase a gun, to acknowledge that he had been convicted of a crime:

'Q. Did you fill out a request to purchase those guns?

'A. Yes, I did.

'Q. What did you say on the form, where it asks, have you ever been convicted of a crime?

'A. I said no.

'Q. You lied, and you want the jury to believe your testimony today?

'A. Yes, I do.'

It is important to note that the fact of the gun purchase and the existence of the witness's prior convictions had already been brought out on direct examination by defendant Collins' attorney.

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  • People v. Parker
    • United States
    • Court of Appeal of Michigan — District of US
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    ...and therefore did not constitute error. People v. Page, 63 Mich.App. 177, 179-180, 234 N.W.2d 440 (1975); People v. Clark, 57 Mich.App. 339, 343, 225 N.W.2d 758 (1975), see People v. Davis, 57 Mich.App. 505, 511-513; 226 N.W.2d 540 (1975). Defendants' remaining assignments of prosecutorial ......
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