People v. Embry

• Citation: 68 Mich.App. 667,243 N.W.2d 711
• Decision Date: 17 May 1976
• Docket Number: Docket No. 21027
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard L. EMBRY, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 711

243 N.W.2d 711

68 Mich.App. 667

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard L. EMBRY, Defendant-Appellant.

Docket No. 21027.

Court of Appeals of Michigan.

May 17, 1976.

Rehearing Denied June 18, 1976.

Released for Publication July 19, 1976.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Stanley Everett, Pros. Atty., for defendant-appellee.

Before J. H. GILLIS, P.J., and KAUFMAN and QUINNELL, ^* JJ.

KAUFMAN, Judge.

Defendant was convicted by a Calhoun County Circuit Court jury of breaking and entering with intent to commit larceny, M.C.L.A. § 750.110; M.S.A. § 28.305. He was subsequently sentenced to a term of from 4 to 15 years in prison and now appeals as of right.

At trial, James Stone, the complainant, testified that, at about 2:30 or 3:00 a.m. on the morning of October 28, 1973, he was sleeping in the living room of his house and was awakened by noise from his bedroom. He saw defendant, whom Stone had known since defendant was a child, rifling a set of drawers. When Stone tried to stop defendant, the two scuffled and defendant ran out of the house. The complainant testified that, although he had locked the rear door of his house when he retired, after the crime he found that the latch on that door and the one on his bedroom door had been torn open. Soon after defendant ran out, Stone called the police and reported the loss of a check and some half-dollars.

Defendant took the stand in his own behalf. After admitting two prior criminal convictions, he claimed that earlier in the evening of the alleged robbery he had been invited to the Stone residence by a Sandra Taylor who also lived there. According to defendant, when he arrived at the house he found the door open, knocked and walked in where he observed Mr. Stone lying on the couch. After trying to awaken Mr. Stone, defendant was 'turning around, looking around and hollering for somebody else' when Mr. Stone arose, scuffled with defendant, and forced defendant to flee the premises.

On appeal, defendant propounds three claims of error. First, defendant contends that the trial court committed reversible error by allowing, over defense objection, the investigating officer to make mention of defendant's mug shots. Before defendant had taken the stand and admitted prior convictions, the prosecutor called Officer McGaha, the investigating officer. McGaha testified that, while he was responding to the call from Mr. Stone, he saw defendant standing at an intersection near the Stone residence. The officer stated that defendant was breathing deeply as though he had been running.

On three different occasions during the course of his testimony, Officer McGaha testified that he had examined police department mug shots to determine if the man he had seen near the Stone residence was the defendant. The officer's first reference to mug shots occurred during direct examination, was properly objected to by defense counsel, and was stricken by the prosecutor himself. Officer McGaha's second reference to mug shots occurred during cross-examination and was not objected to by either party. The witness' third reference to mug shots occurred during redirect examination when the witness stated that he had picked out defendant's mug shot, whereupon defense counsel objected to the testimony and moved that it be stricken. However, the trial judge refused to do so on the basis that 'it was brought out in the cross-examination of the witness in answer to the question of counsel as to how he determined who the defendant--who the party was--and so he explained that. So I assume the prosecutor has a right to further questioning'. Defendant's appellate challenge is based on this ruling.

It is true that where a defendant has not taken the stand the testimony concerning a defendant's mug shot or admission of the photo itself will impermissibly place his criminal record before the jury. People v. Heller, 47 Mich.App. 408, 209 N.W.2d 439 (1973). This Court, as defendant notes, has looked with disfavor on the introduction of evidence, even obligue or unresponsive testimony, referring to a defendant's criminal record before he has taken the stand. See, e.g., People v. Deblauwe, 60 Mich.App. 103, 230 N.W.2d 328 (1975); People v. Buffa, 51 Mich.App. 680, 216 N.W.2d 494 (1974); People v. McCartney, 46 Mich.App. 691, 208 N.W.2d 547 (1973); Cf. People v. Willis, 60 Mich.App. 154, 230 N.W.2d 353 (1975); People v. Averill, 59 Mich.App. 507, 229 N.W.2d 827 (1975). However, we take an equally dim view of a defendant using invited error as a basis for appeal. People v. Collins, 63 Mich.App. 376, 234 N.W.2d 531 (1975). In the instant case, defense counsel questioned Officer McGaha about his identification of defendant with full knowledge from the prior stricken testimony that mug shots were used to make that identification. He nonetheless elicited the fact that mug shots were used. Nor did he attempt to have the officer's testimony stricken as unresponsive.

We, therefore, agree with the court and with the plaintiff that the challenged testimony was invited by prior defense questioning. We do not, however, condone the unnecessary, repetitive and prejudicial eliciting by the prosecutor of the same information brought out by defense counsel. This action did not rise to the level of reversible error.

Defendant's second claim of error is that he was denied a fair trial when the prosecutor improperly vouched for the credibility of a prosecution witness and denigrated defendant's testimony. There was no defense objection to the remarks challenged on appeal. While a prosecutor may not vouch for the evidence or place the weight of his office behind the prosecution, he, within limits, may argue the credence of witnesses to the jury where, as here, the testimony is conflicting and the result depends on which of two witnesses is to be believed. People v. Davis, 57 Mich.App. 505, 226 N.W.2d 540 (1975), Lv. den., 394 Mich. 817 (1975). We find that the challenged statements did not exceed proper limits and certainly did not constitute a miscarriage of justice. M.C.L.A. § 768.26; M.S.A. § 28.1049. People v. Phillips, 61 Mich.App. 138, 232 N.W.2d 333 (1975).

Defendant's final appellate contention is that the trial court committed reversible error in its instruction to the jury on consideration of lesser included offenses. In the challenged instruction, the court stated, in relevant part 'So when you retire to the juryroom, you will have the right to consider four possible verdicts. If you are convinced beyond a reasonable doubt that the Defendant did, on...