People v. Ely, Docket No. 10272

• Decision Date: 29 July 1971
• Docket Number: No. 1,Docket No. 10272,1
• Citation: 35 Mich.App. 390,192 N.W.2d 662
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen ELY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 662

192 N.W.2d 662

35 Mich.App. 390

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Allen ELY, Defendant-Appellant.

Docket No. 10272.

Court of Appeals of Michigan, Division No. 1.

July 29, 1971.

Leave to Appeal Denied Oct. 15, 1971.

Released for Publication Dec. 29, 1971.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.

PER CURIAM.

Having been charged with 2nd-degree murder, M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549), defendant was convicted upon a jury verdict of manslaughter, M.C.L.A. § 750.321 (Stat.Ann.1954 Rev. § 28.553), and was sentenced to 7 to 15 years in prison. Defendant appeals as of right, raising four instances of alleged error.

First, defendant claims error in the admission of the testimony of the Wayne county medical examiner, who related the results of an autopsy which he had not attended. Defendant admits that no objection was ever made to this testimony and that, in fact, defense counsel proceeded to cross-examine the medical examiner. Although the admission of some hearsay testimony to establish the cause of death may be error, this was harmless error, since no real dispute existed as to the cause of death. People v. Hall (1970), 24 Mich.App. 509, 512, 180 N.W.2d 363.

Second, defendant asserts that plaintiff abridged his right to remain silent by cross-examining him on his failure to tell the police where he had disposed of the murder weapon. However, no objection was voiced at trial and no motion to strike was made. In the absence of manifest injustice, we decline review. People v. Ramsey (1970), 25 Mich.App. 576, 578, 181 N.W.2d 553; People v. Willis (1965), 1 Mich.App. 428, 136 N.W.2d 723.

Third, we find no prejudice in the prosecutor's remarks which would require reversal.

Fourth, defendant contends now, for the first time, that lack of clarity in the trial court's instructions on the issue of self-defense gives rise to reversible prejudice even in the absence of contemporaneous objection.

It is well established that, in the absence of otherwise essential objection or request, ¹ we correct only miscarriages of justice. M.C.L.A. § 769.26 (Stat.Ann.1954 Rev. § 28.1096). Further, we do not search out singularly objectionable excerpts from the instructions; we must review the instructions as a whole. People v. Dye (1959), 356 Mich. 271, 279, 96 N.W.2d 788; People v. Iron (1970), 26 Mich.App. 235, 241, 182 N.W.2d 342. Examination of the instructions as a whole reveals no lack of clarity amounting to reversible error.

The defendant having demonstrated no error requiring reversal, the trial court is affirmed.

1 GCR 1963, 516.2; People v. Lewis (1970), 26...