People v. Ford

• Citation: 228 N.W.2d 533,59 Mich.App. 35
• Decision Date: 24 February 1975
• Docket Number: Docket No. 18043,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Lee FORD, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 533

228 N.W.2d 533

59 Mich.App. 35

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Lee FORD, Jr., Defendant-Appellant.

Docket No. 18043.

Court of Appeals of Michigan, Division No. 2.

Feb. 24, 1975.

Released for Publication May 12, 1975.

Wayne C. Shehan, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Don L. Milbourn, Chief Appellate Lawyer, by Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and KAUFMAN and O'HARA, ^* JJ.

ALLEN, Presiding Judge.

On June 22, 1973, a jury found defendant guilty of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. On July 6, 1973, defendant received a sentence of 7 to 15 years in prison with 184 days credit for time served.

Defendant raises three allegations of error on appeal. First, defendant argues that the prosecutor's question as to whether defendant was going to subpoena a witness to testify in defendant's behalf was analogous to the prohibition against commenting upon defendant's exercise of his right to remain silent, and was improper and prejudicial. Second, defendant argues that reversible error was committed when the prosecutor, in the course of his argument, referred to some evidence which had not been admitted during trial. Finally, it is urged that reversible error occurred when the prosecutor questioned defendant about a prior inconsistent statement which had previously been excluded by the trial court.

This case arises out of an armed robbery which occurred at the Admiral Motel, located on South Gratiot just north of 15 Mile Road in Clinton Township, on January 5, 1973. The manager of the motel testified that at about 9 p.m., defendant came into the motel and asked for a room, and the manager quoted him some prices. Defendant then pulled out a gun, and engaged the manager in a typical 'your money or your life' conversation. Defendant then reached over the front counter, pulled out the cash drawer and grabbed what later turned out to be $104 in bills of various denominations. As defendant turned from the counter, the manager shot him, and defendant fell to the floor. Defendant's version of what occurred on that night differed from the above, and various aspects of defendant's testimony will be discussed as they are relevant to the issues.

Defendant testified that on the night in question he was on his way to a party, and stopped at the motel to secure a room which he and a female companion were to share later that evening. He testified that he had hitchhiked to the motel because a friend of his, who was having the party with another person, was using defendant's automobile. Defendant said that after talking with the motel manager, he reached down for some money which he kept in his sock, and heard the manager tell defendant to get out of the motel because he did not like defendant's 'kind in here'. Defendant became angry, and said that he told the manager that he would 'blow the place up'. As he turned to leave, he was shot in the shoulder, and fell to the floor. He denied taking any money from the cash drawer, and denied that he was involved in any sort of armed robbery at the motel on the night in question. He acknowledged that he had a starter pistol in his possession, and stated that it belonged to another person from whom he had obtained it about one hour earlier in a nearby saloon. He said that he wanted the pistol to protect himself because the party was being held in an area frequented by 'shady people'.

While defendant testified, he produced no witnesses in his behalf. Neither the person from whom he obtained the starter pistol, nor his proposed female companion and the person allegedly using his automobile, were called to testify in his behalf. The prosecutor asked defendant: 'Are you going to subpoena anybody to come in and testify for you?' Defense counsel objected, and the trial court instructed the jury to disregard that statement. Later, at the beginning of his general jury instructions, the trial judge told the jury not to be concerned with whether or not defendant produced any witnesses.

The above facts are relevant to defendant's initial argument, and we find that claim to be without merit. The prosecutor is entitled to comment upon defendant's failure to produce corroborating witnesses, and the trial court afforded more protection to defendant than he was entitled to receive. People v. Gant, 48 Mich.App. 5, 8--9, 209 N.W.2d 874 (1973). See also People v. Hooper, 50 Mich.App. 186, 196--197, 212 N.W.2d 786 (1973), lv den., 391 Mich. 808 (1974).

Testimony was received from both the manager of the motel and from the police officers who arrived on the scene that the money allegedly taken from the cash drawer was lying on the floor near defendant's body, particularly near his feet. While one officer testified that he collected the money, put it in his pocket and returned to the station to count it, the money was never offered into evidence. The officer said that he had placed it in an envelope and subsequently put in into a safe. The envelope was then taken to a state police crime laboratory and tested for fingerprints, and was returned in another envelope. The officer's first envelope was not returned to him, and he was unable to say that the dollar bills returned to him were exactly the same dollar bills which he delivered to the crime lab. Defense counsel objected to any reference to the fingerprint smudges allegedly found on the dollar bills. Also, another officer testified that he took some pictures of the scene and these photographs were never offered into evidence. During his rebuttal argument, the prosecutor told the jury: 'Unfortunately, or fortunately, fortunately for our system we have rules of evidence', and then said: I have still got the money. I still have got the pictures. But I still cannot bring them before you.' Defense counsel immediately objected, and the trial judge instructed the jury to disregard the prosecutor's statement. Relying upon People v. Martin, 37 Mich.App. 621, 194 N.W.2d 909 (1972), remanded on other grounds, 387 Mich. 766 (1972), among other authorities, defendant argues that reversible error occurred in light of the above facts.

In Martin, defendant was charged with one specific instance of sale of heroin. M.C.L.A. § 335.152; M.S.A. § 18.1122. During his closing argument, the prosecutor referred to defendant as a pusher and said that 'many people' go to such a person. Although there was no evidence that defendant sold heroin to other people, the court held that in view of the entire summation and the cautionary jury instruction, no reversible error was present. Martin said that if any prejudice occurred, that prejudice had been cured by the trial judge's instruction to the jury that it had a duty to make findings of fact and draw inferences from the testimony rather than from what the attorneys argued. 37 Mich.App. 621, 632, 194 N.W.2d 909.

In the instant case, the trial court told the jury that it was to draw its own conclusions from the evidence and specifically cautioned the jury to disregard the prosecutor's statement at issue. Defense counsel promptly objected to the statement, and the jury had previously been informed that the money taken from the cash drawer was found strewn about near defendant's body. Also, testimony was received that a police officer took pictures of the scene. We find that the prosecutor's statement was not so prejudicial that the curative instruction failed to have any effect on the jury. In this situation, we find no prejudice to defendant and therefore an absence of reversible error. People v. Wheat, 55 Mich.App. 559, 566, 223 N.W.2d 73, 76--77 (1974).

Relying upon People v. Allen, 299 Mich. 242, 300 N.W. 59 (1941), defense counsel argues that reversible error was committed when the prosecutor asked defendant whether defendant had ever made a different statement other than that which he had made to the jury. During trial, the jury was excused and the prosecutor made an offer of proof, placing Detective Russell Day on the witness stand. Day testified that on June 11, 1973, he was visiting another prisoner in the jail, when defendant called out to the officer and said: 'Can I cop a plea to attempted armed robbery? After all, I didn't get out of the building with the money, that's an attempt, that's not armed robbery.' The officer said that he told defendant to wait and talk to his attorney about this matter. The officer said that he neither solicated, encouraged nor pursued this conversation. The prosecutor moved to allow the introduction of this evidence in his case in chief, defense counsel objected, and testimony was taken from defendant, on a special record, the jury still being absent, which indicated that defendant had just seen his attorney and said: 'They are trying to give me a 15-year cop'. Defendant denied making the specific statements to which Officer Day had previously testified. The trial court said that while defendant had volunteered the statement, the evidence would be excluded on the grounds that because defendant was represented by counsel, he had no right to engage in plea bargaining by himself, and that to admit the evidence would force defendant to take the stand and deny the substance of Officer Day's testimony. Therefore, the judge said that the evidence was inadmissible 'at this stage of the proceedings', and precluded in the prosecutor from introducing it.

Defendant testified in his own behalf, and on cross-examination the prosecutor inquired 'and you've never made a different statement other than this that you're giving us today?' Defense counsel immediately objected, and the trial court sustained that objection. The prosecutor once again asked whether defendant's trial testimony was the first time he had related his version of what happened the night in question. Defense counsel objected, and the...