People v. Etchison

• Decision Date: 06 May 1983
• Docket Number: Docket No. 55572
• Citation: 333 N.W.2d 309,123 Mich.App. 448
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Joseph ETCHISON, Defendant-Appellant. 123 Mich.App. 448, 333 N.W.2d 309
• Court: Court of Appeal of Michigan — District of US

Page 309

333 N.W.2d 309

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Joseph ETCHISON, Defendant-Appellant.

Docket No. 55572.

123 Mich.App. 448, 333 N.W.2d 309

Court of Appeals of Michigan.

Submitted Aug. 3, 1982.

Decided Feb. 24, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 449] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Conrad J. Sindt, Pros. Atty., and John H. Macfarlane, Chief Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by P.E. Bennett, Detroit, for defendant-appellant.

[123 MICHAPP 450] Before V.J. BRENNAN, P.J., and HOLBROOK and ERNST, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Thereafter sentenced to two terms of life imprisonment on the murder and assault charges and two years on the felony-firearm charge, defendant appeals as of right.

First defendant claims that the trial court erred in allowing rebuttal evidence which did not contradict the exact testimony of an earlier witness. Defendant presented six alibi witnesses, one of whom was Roosevelt Hunt. They all testified that they were present with defendant at defendant's residence on the evening in question. The prosecutor asked Hunt if he remembered certain of the alibi witnesses being at the house. However, he did not ask Hunt if he remembered Ronnie Armstrong's being there. Officer Belote testified in rebuttal to Hunt's testimony. The prosecutor asked Belote if Hunt had given him a statement as to the whereabouts of Ronnie Armstrong. At this point, defense counsel objected on the grounds of improper hearsay and rebuttal. Belote then stated that Hunt previously told him Ronnie Armstrong was at defendant's home on the evening of January 16. In closing argument, the prosecutor used the alleged inconsistency in Hunt's testimony to impeach his credibility. Defense counsel did not object to these remarks.

Belote's testimony was improper rebuttal evidence. As stated above, Hunt was never asked as to the whereabouts of Armstrong. It was therefore [123 MICHAPP 451] improper to question Belote as to Hunt's statement in which he allegedly said that Armstrong had been present. Generally, the only type of contradictory evidence admissible on rebuttal is that which directly tends to disprove the exact testimony given by a witness. People v. McGillen # 1, 392 Mich. 251, 220 N.W.2d 677 (1974); People v. Lee Dyson, 106 Mich.App. 90, 307 N.W.2d 739 (1981).

The standard of review of improperly admitted rebuttal testimony is whether the error was so egregious as to result in a miscarriage of justice. People v. Bell, 101 Mich.App. 779, 300 N.W.2d 691 (1980). We hold there was no reversible error. There was no evidence of lack of good faith by the prosecutor and the remark, occurring after a seven-day jury trial, should more properly be construed as inadvertent and isolated, rather than deliberately or grossly prejudicial. Furthermore, five other alibi witnesses testified for defendant; Hunt was not defendant's only alibi witness. His testimony was not as crucial as defendant contends it to be on appeal.

Second, defendant claims that the prosecutor's misstatement of the evidence during closing argument requires reversal of his conviction. Defense counsel failed to object to the prosecutor's misstatement. Hence, appellate review is precluded absent a miscarriage of justice. People v. LaPorte, 103 Mich.App. 444, 303 N.W.2d 222 (1981). Although it is true that the prosecutor misstated the circumstances surrounding the physical lineup, the misstatements were indeed minor. Instead of stating that Nancy Edwards identified defendant when individual # 5 stepped forward, the prosecutor stated that she interrupted the proceedings when individual # 3 stepped forward. This statement [123 MICHAPP 452] was untrue; however, it is undisputed from reviewing the record that Nancy identified defendant and was positive of her identification. We hold the error to be harmless.

Finally, defendant claims that the trial court erred in refusing to instruct the jury on attempted felony-firearm and attempted assault with intent to commit murder.

With regard to attempted felony-firearm, there was no reversible error. An instruction under the general attempt statute, M.C.L. Sec. 750.92; M.S.A. Sec. 28.287, is appropriate only where no express provision for attempt exists in the statute under which a defendant is charged. People v. Kamin, 405 Mich. 482, 275 N.W.2d 777 (1979); People v. Denmark, 74 Mich.App. 402, 416, 254 N.W.2d 61 (1977). The felony-firearm statute proscribes the carrying or possession of a firearm during the commission or attempted commission of any felony. Moreover, since the Legislature clearly intended to punish possession of a firearm during an abortive felony, it could have...