People v. Dersa

• Citation: 202 N.W.2d 334,42 Mich.App. 522
• Decision Date: 29 August 1972
• Docket Number: No. 2,Docket No. 12145,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard DERSA, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 334

202 N.W.2d 334

42 Mich.App. 522

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard DERSA, Jr., Defendant-Appellant.

Docket No. 12145.

Court of Appeals of Michigan, Division No. 2.

Aug. 29, 1972.

Leave to Appeal Denied Nov. 16, 1972.

Released for Publication Dec. 8, 1972.

Paul G. E. Valentino, Pontiac, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for appellee.

Before HOLBROOK, P.J., and R. B. BURNS and T. M. BURNS, JJ.

HOLBROOK, Presiding Judge.

Leonard Dersa, Jr., defendant, in a jury trial held May 24, 25, and 27, 1971, was convicted of the crime of larceny over $100, M.C.L.A. § 750.356; M.S.A. § 28.588.

Defendant has appealed and asserts (a) that the prosecutor committed reversible error in his closing argument; and (b) that a denial of defendant's request for a continuance by the trial court prevented defendant an opportunity to present an adequate defense and was reversible error.

There are four parts of the prosecutor's oral argument that defendant claims constituted reversible error.

(1)

During his closing argument to the jury, the assistant prosecutor, Mr. Franklin Koory, made the following comments:

'Now, the defendant's witnesses also testified that he was not driving the white Pontiac Tempest in November of 1970. But let me ask you didn't one witness come into this court and state that the defendant was so interested in that white Tempest that he went all the way over to the beauty salon trying to have it towed away?

'Now, there was testimony that he was driving a GTO at that time. Now, the evidence--there was no evidence whatsoever in the record that he owned a GTO. And while the burden of proof is never upon the defendant in any criminal case, when there is evidence within the defendant's control and evidence that the defendant can obtain, the burden is upon him to get it.

'Why didn't the defendant get a certified copy from the Secretary of State that a GTO was registered to the defendant?'

At this point, the following occurred:

'Mr. Valentino (Defense counsel): Objection. I didn't know that was material to the case, your Honor.

'The Court: This is argument. Objection overruled.

'Mr. Koory: Thank you, your Honor.

'The only question Mr. Valentino asked each of these witnesses was 'at one time or another did you see him drive a GTO in the month of November?'

'Now, when Mr. Valentino addresses you, he will owe you a convincing explanation of why he didn't obtain a certified copy of the record of that GTO from the Secretary of State.

'Mr. Valentino: Your Honor, I must object to this type of argument.

'The Court: Well, I instruct the jury there's no burden upon the defendant to produce any type of evidence. The burden is upon the people to prove guilt beyond a reasonable doubt.

'Mr. Koory: The people agree with that proposition.' (Emphasis supplied.)

Since the trial court immediately instructed the jury that 'there's no burden upon the defendant to produce any type of evidence' and that the 'burden is upon the people to prove guilt beyond a reasonable doubt,' the improper comment of the assistant prosecutor: (a) was corrected by the trial court; or (b) was, thereby, rendered harmless error. See People v. Alexander 26 Mich.App. 321, 182 N.W.2d 1 (1970) and People v. Cavataio, 34 Mich.App. 126, 190 N.W.2d 718 (1971).

(2)

During his closing argument to the jury, defense counsel, Paul Valentino, made the following comments:

'Again, this is all incredible. Who do they bring in? A hair dresser, who does his ex-wife's hair. She's now at a new shop. Donna Dersa, the ex-wife of this defendant, is at the new shop, too, having her hair done.

'What about the police officer, the Waterford Township Police Officer? Why didn't the people bring the police officer in here to corroborate the story? Goodness gracious, all the power of the State. They own the police officer, ladies and gentlemen. All they have to do is pick up the phone, call Chief Stokes in Waterford Township and say 'send officer so-and-so, who on Thanksgiving Eve ---' because he made a report. You remember what the witness said, he made a report. If he made a report, it's in the file. Why didn't they bring the police officer in to testify?

'Mr. Koory: Objection. There's no evidence in the record that any report has been filed with the Waterford Township Police.

'The Court: Somebody testified there was one. I recall that.

'Mr. Valentino: Thank you.

'Why didn't they bring in the police officer? He doesn't know anybody. I feel kind of sorry for him. Here are two people in a divorce suit, fighting. One of them with a wrecker, trying to have a car towed away. Here comes a poor police officer. I think he would remember if the man had a bushy beard. I think he would remember, ladies and gentlemen.

'I feel kind of sorry for him. The people didn't bother to bring him in, even though he is their man.

'What about the wrecker driver? Why didn't they bring him? We tried. You heard this morning. They've had plenty of time, but isn't it strange--I assume their witness did not fall out of the sky into that witness box yesterday. I can only assume that she had told the prosecution all about this incident, as she had told it from the witness stand.

'Why did the people not bring other persons to corroborate her testimony? I suggest to you they didn't bring them because the police officer would have said this man was clean shaven when he came and tried to get his car with the wrecker. That's what I think he would have said.'

During his Rebuttal argument to the jury, the assistant prosecutor made the following reply to the above-quoted argument of defense counsel:

'Now, Mr. Valentino asked why we didn't bring in the police officer who was at the beauty shop the day that the car was picked up by the wrecker to testify to this particular matter.

'Well, ladies and gentlemen, the police officer was simply not brought in on our part. And if Mr. Valentino wanted to bring him in, he has the same power of subpoena that we have. If Mr. Valentino wanted him as a witness, and Mr. Valentino had an opportunity to investigate this on Wednesday, he could have simply brought the man in. He would have, if it would have helped his case out. But apparently Mr. Valentino didn't feel--

'Mr. Valentino: Objection.

'The Court: Objection sustained as to 'apparently'. Objection sustained.

'Mr. Koory: I didn't understand that objection.

'The Court: You cannot comment as to 'apparently' what was in his mind. You may comment as to what he did or did not do, but not what was apparently in his mind.

'Mr. Koory: Well, if he would have been a good witness for Mr. Valentino, why didn't Mr. Valentino bring him in?'

The above-quoted comments of the assistant prosecutor did Not prejudice the defendant's right to a fair and impartial trial because these comments were Made in rebuttal to matters first raised by defense counsel during his closing argument to the jury. See People v. Harris, 31 Mich.App. 100, 187 N.W.2d 502 (1971), and People v. Green, 34 Mich.App. 149, 151, 190 N.W.2d 686 (1971).

(3)

During his closing argument to the jury, defense counsel made the following comments:

'Now, are we to assume that every one of the relatives of the defendant would lie as to whether or not he had a beard? Would you? Would I? Would I take the witness stand, under oath, face the penalty of perjury, and lie about whether or not a relative had a beard?

'Who would you go to, ladies and gentlemen, to find out whether or not a man wore a beard in the month of November besides relatives and friends? Who in the world can a man, who's accused of committing a crime go to? Who knows him best? Who has more opportunity to view him and see him and know whether or not he had a beard? It is the people's contention that what he should have done is gone down to Detroit and find someone who never saw him before in his life and say to this man, 'Come to court and tell the jury that I didn't have a beard in November of 1970.'

'Is that who we would go find, or would we go find those who know us best? The family, his minister. Is he a liar, too? He says on November 9th he was with the family three days. Is the minister a liar? He says the man was clean-shaven at his father's funeral, 20 days before this incident occurred, on the 9th. Is he a liar? Is he a liar? I suggest to you not.'

During his Rebuttal argument to the jury, the assistant prosecutor made the following reply to the above-quoted argument of defense counsel:

'Now, Mr. Valentino mentioned, during the course of his argument, that the defendant had nobody else to go to besides his relatives to corroborate the fact that he had a beard during the month of November. What about Mr. Dersa's employer? What about any other disinterested person that Mr. Dersa would have come in contact with during the month of November.

'And let me remind you that from the time of the preliminary examination, when Mrs. Rice first testified that he had a beard--and this took place on December 28, 1970--.'

At this point, the following occurred:

'Mr. Valentino: November 30th--oh, the preliminary examination, I'm sorry.

'Mr. Koory: On December 28, 1970--

'Mr. Valentino: Objection, it couldn't very handily have taken place on November 28, 1970, when the offense--

'Mr. Koory: I said December 28, 1970.

'Mr. Valentino: Your Honor, I didn't know we had the transcript of the preliminary examination in evidence.

'The Court: It's in the file, he can comment on that date.

'Mr. Koory: Thank you.

'The defendant has had since December 28, 1970, to locate any other person, other than relatives, who could have offered probative testimony as to the fact that he had a beard during the month Of November.'

We conclude that the above-quoted comments of the assistant prosecutor did Not prejudice the defendant's right to a fair and impartial trial because these comments were Made in rebuttal to matters first...