People v. Duke

• Decision Date: 06 December 1973
• Docket Number: No. 3,Docket No. 15338,3
• Citation: People v. Duke, 213 N.W.2d 769, 50 Mich.App. 714 (Mich. App. 1973)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert DUKE, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 769

213 N.W.2d 769

50 Mich.App. 714

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert DUKE, Defendant-Appellant.

Docket No. 15338.

Court of Appeals of Michigan, Division No. 3.

Dec. 6, 1973.

Released for Publication Jan. 21, 1974.

Rehearing Denied Jan. 28, 1974.

James R Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and BASHARA and O'HARA,* JJ.

O'HARA, Judge.

Following trial to a jury, defendant was convicted of breaking and entering an occupied dwelling, M.C.L.A. § 750.110; M.S.A. § 28.305, and unarmed robbery, M.C.L.A. § 750.530; M.S.A. § 28.798. Arraignment was also had on a supplemental information charging him with being a habitual felony offender, M.C.L.A. § 769.10; M.S.A. § 28.1082, and defendant was sentenced to 4 to 30 years in prison. This appeal followed.

Defendant first alleges that the trial court committed reversible error by allowing the prosecutor to introduce testimony pertaining to certain coins found on the person of defendant at the time of his arrest. He claims the testimony properly belonged in the case in chief and that it was highly prejudicial to defendant that the prosecutor recalled a police witness after the close of the defense case when it would make refutation by the defendant difficult. In the present case, the rebuttal testimony showing that the defendant allegedly committed another crime was not introduced for the improper purpose of showing that the defendant committed the crime charged herein. Rather such testimony was introduced for the purpose of directly rebutting defendant's testimony with respect to the events surrounding his arrest. The trial court did not abuse its discretion by admitting the rebuttal testimony of the officer.

The second allegation of improper conduct by the prosecutor relates to the questioning of a defense witness where it is asserted that the prosecutor made several innuendoes of sexual impropriety between the witness and defendant.

If defendant believed that the prosecutor was pursuing an improper line of inquiry, he should have made an objection. A careful reading of the transcript coupled with defendant's lack of objection persuades us that the questions did not interfere with defendant's having a fair tiral or cause the jury to suspend its own power of judgment in hearing the evidence adduced at trial.

For the first time on appeal defendant cites certain portions of the prosecutor's closing argument as being so improper and prejudicial as to deny defendant his constitutional right to a fair trial.

A prosecutor is entitled to comment on the evidence and draw reasonable inferences therefrom. He is free in final argument to relate the facts to his theory of the case. In this case, the prosecutor attempted to establish a permissible relationship between his theory and the facts in evidence. Defendant made no objection at the time the allegedly offensive statements were made. There was no request for curative or corrective instructions. Hence the error, if any, was waived.

The record belies defendant's next assertion that he was denied an opportunity to adequately explain mitigating circumstances relating to his criminal convictions and thus was prevented from presenting crucial facts which would have cast his prior acts in a different light. There was no abuse of discretion by the trial judge in placing reasonable limitations on the extent to which defendant could delve into an admittedly collateral matter.

Defendant further contends that the trial judge abused his discretion by allowing the rereading of certain testimony allegedly supporting the prosecution's case to the exclusion of testimony consistent with defendant's theory of the case.

The defendant and his mother operated a used furniture and appliance store. Allegedly a girl came to his establishment and told him that an acquaintance of defendant's one Curtis, had some goods which might be of interest to defendant. Relying on this supposed understanding defendant innocently drove to the scene of the crime and was met by the same unidentified female outside of an apartment house. She gave him certain merchandise and said that they would settle accounts later. At the time of defendant's arrest the merchandise was seized and subsequently identified as that taken in the burglary. Neither Curtis nor the girl was located or testified at trial.

During their deliberations the jury sent three questions to the judge. Quite properly, he, in the exercise of his discretion, permitted rereading of testimony of two prosecution witnesses in response to what were reasonably specific requests of the jury. The third question was thus framed: 'Is there evidence that Curtis and 'the girl' really exist, and is it possible to determine for certain that they left Grand Rapids for California?' Had the trial judge affirmatively responded to this request he clearly would have infringed on the undisputed right of the jury to resolve controverted questions of fact. Hence the trial judge correctly denied the latter request of the jury.

On oral argument the able representative of the State Appellate Defender's Office argued with great vigor that irrespective of the strict legal test for reversible error we should examine the question of the fairness of the prosecutor in presenting the rebuttal evidence. He urged also that the trial judge could have read into the question by the jury concerning the existence of 'Curtis and the girl' a request for a rereading of the defendant's testimony concerning their existence and their having left the state. The panel pointed out the mandate of the statute ¹ and the court rule ² concerning the setting aside of judgments of convictions for claimed instructional error and rulings on the admissibility of evidence. We make good our commitment to him to read the record with care to determine whether a miscarriage of justice may have occurred.

The indicia of guilt seem to us to be great. It is difficult indeed to disregard all the evidence which if accepted by the jury linked the defendant to the offense charged and of which he was convicted. We find no miscarriage of justice.

After this case had been submitted and the panel had already addressed itself to the issues beiefed, the Appellate Defender's Office made a motion for leave to file a supplemental brief. The practic is strongly disapproved. Of course, there are exceptions. Opinions of the Supreme Court on constitutional questions are usually implicity retroactive and thus must always be considered. Opinions explicitly given retroactive effect must be considered by us even after a case is submitted. Neither situation obtained in the case at bar. Nevertheless we granted the motion to test the propriety of the use of photographic identification in this case while the defendant was in custody and whether there existed any ascertainable reason why corporeal identification with counsel present could not have been used. These questions are discussed in recently released People v. Anderson, 389 Mich. 155, 205 N.W.2d 461 (1973).

We will attempt to place the issues in clear judicial perspective so that the trial bench and bar will know our interpretation of Anderson, supra. The case holds:

'1. Subject to certain exceptions, identification by photograph should not be used where the accused is in custody.

'2. Where there is a legitimate reason to use photographs for identification of an in-ccustody accused, he has the right to counsel as much as he would for corporeal identification procedures.' 389 Mich. at 186--187, 205 N.W.2d at 476.

In the case at bar the defendant was seen by complaint in her apartment while defendant was taking items of her personal property. She had no difficulty with corporeal identification. She was certain, unequivocal, and precise in her description of the intruder to the police. She specified with particularity the items that he took. He struck her and ran from the apartment. She called the police. Defendant was apprehended with the items she specified in his car, a detailed description of which was supplied by an alert newsboy who saw him run from...