People v. Evans, Docket No. 9378
Decision Date | 01 October 1971 |
Docket Number | Docket No. 9378,No. 1,1 |
Citation | 36 Mich.App. 238,193 N.W.2d 387 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald Ray EVANS and Marvin Louis Evans, Defendants-Appellants |
Court | Court of Appeal of Michigan — District of US |
Kenneth A. Webb, Webb & Farrug, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.
Before LEVIN, P.J., and QUINN and V. J. BRENNAN, JJ.
The defendants, Donald and Marvin Evans, were convicted of larceny from a person. 1
They contend (1) during closing argument to the jury, the prosecutor expressed his personal opinion that the defendants were guilty, and (2) the trial judge failed to charge the jury regarding a legally essential element of the offense of larceny from a person. We affirm.
The prosecutor opened his final argument to the jury with the following statement:
'Counsel (defense counsel) remembers the testimony different than I do. He remembers that one person said the taller man had the purse, one person said the shorter man had the purse. My recollection of this testimony is both witnesses said it was the taller man who had the purse.
(Emphasis supplied.)
The defendants contend that this argument violated the rule which prohibits a prosecutor from expressing a 'personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant'. 2
This rule seeks to guard against the jury being unduly swayed by a personal plea from one representing duly constituted authority:
'It is presumable that statements of fact based upon personal knowledge, made by a person occupying the responsible position of prosecuting attorney of a county, whom the people have chosen because of his ability and character to fill that position, would have both weight and influence with the jury, and may have determined any doubt which they, or some of them, may have entertained of the defendant's guilt against him.' People v. Dane (1886), 59 Mich. 550, 553, 26 N.W. 781.
In the present case, the prosecutor did not vouch for the defendants' guilt on a personal basis, he was not saying, 'take it from me, we have the right men'. Rather, we have a spirited argument in which the prosecutor said something much closer to: 'The evidence shows that these men committed the crime'. The line is imprecise, but every positive statement by the prosecutor is not an expression of a personal opinion or a personal plea necessitating a new trial.
Moreover, we are convinced that whatever waywardness there may have been in the prosecutor's argument could have been overcome by an instruction from the bench had the defendants' trial lawyer objected at the time. 3
In his instructions to the jury, the judge read the statute making larceny from a person an offense and also the information charging the defendants with committing that offense by stealing a lady's purse 'from the person of the said complainant'. He Also instructed the jury that 'in order to constitute an offense under this statute' the jury must find that the property 'was taken from the person of the owner by the defendants with the intent to commit larceny'. In the next sentence he summed up, but did not again say that the taking must be 'from the person'.
In People v. Price (1970), 21 Mich.App. 694, 697, 176 N.W.2d 426, relied on by the defendants, the judge, as in the present case, read the statute and the information to the jury. He did not, in contrast with the present case, separately explain and instruct the jury that it must find the elements distinguishing the particular statutory larceny charged in the information from other crimes of larceny. In People v. Bowen (1968), 10 Mich.App. 1, 158 N.W.2d 794, the judge did not give any instruction whatsoever concerning a necessary element of the offense. Nor is this a case of 'conflicting instructions * * *, one erroneous and the other correct'. 4 In this case, the judge merely did not reiterate that which in the immediately preceding...
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People v. Johnson
...it was a permissible commentary upon the evidence. People v. Rodriguez, 35 Mich.App. 342, 192 N.W.2d 563 (1971); People v. Evans, 36 Mich.App. 238, 193 N.W.2d 387 (1971). Contrast, People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 Defendant argues that the other portions of the prosecut......
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People v. Shegog, Docket Nos. 12103
...legitimate argument. Further, defendants failed to either object at the time or to seek a curative instruction. People v. Evans, 36 Mich.App. 238, 241, 193 N.W.2d 387 (1971); People v. Latham, 32 Mich.App. 198, 188 N.W.2d 240 (1971); People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 238 (19......
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People v. Pomranky
...wouldn't prosecute fabricated charges in furtherance of a frameup as defense counsel has told you we did'. See People v. Evans, 36 Mich.App. 238, 240--241, 193 N.W.2d 387 (1971). The prosecutor's remarks are more nearly analogous to the comments which formed part of the people's summation i......
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People v. White, Docket Nos. 16589--16591
...has found no reversible error in prosecutorial remarks of similar character that were not objected to at trial. People v. Evans, 36 Mich.App. 238, 241, 193 N.W.2d 387, 389 (1971); People v. Smith, 16 Mich.App. 198, 201, 167 N.W.2d 832, 834 (1969); People v. Russell, 27 Mich.App. 654, 663, 1......