People v. Foster

• Decision Date: 15 January 1974
• Docket Number: No. 1,Docket Nos. 14501,16504,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Conrad Allen FOSTER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Debra McKNIGHT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 723

214 N.W.2d 723

51 Mich.App. 213

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

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Debra McKNIGHT, Defendant-Appellant.

Docket Nos. 14501, 16504.

Court of Appeals of Michigan, Division No. 1.

Jan. 15, 1974.

Released for Publication Feb. 19, 1974.

Irving Tukel, Southfield, for Foster.

Frederick B. Bellamy, Frimet, Goren & Bellamy, Southfield, for McKnight.

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

Before, LESINSKI, C.J., and R. B. BURNS and QUINN, JJ.

LESINSKI, Chief Judge.

Defendants, in a joint jury trial, were convicted of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. Both appealed but since the appeals were not timely filed, this Court treated them as applications for delayed appeal. The applications were granted and the appeals were consolidated. The defendants now raise several assignments of error, none of which require reversal.

The defendants first state that the trial court erred when it denied a motion to sever the trial of defendant McKnight from that of defendant Foster. It is not clear from the record that this motion was ever made. Even granting, however, that this motion may have been placed before the court during the discussion of other motions, we still find no error. Under the facts of the instant case, the denial of severance would have been within the discretion that the Legislature has vested in the trial court. M.C.L.A. § 768.5; M.S.A. § 28.1028.

The defendants next allege that the actions of the prosecutor denied them a fair and impartial trial. While not condoning all the conduct of the prosecutor, we find in reviewing the record no reversible error.

The first action of the prosecutor alleged as error is the display to the jury of a weapon which was never admitted into evidence. At the outset we note that the defendants never objected at trial to the manner in which the prosecutor utilized the exhibit. They also did not ask for a cautionary instruction. The proper steps for preserving the issue for appeal, therefore, were not taken. Absent such preservation of the issue, we do not feel that this record presents facts which would mandate our consideration of the alleged error. Cf. People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 (1970). A cautionary instruction would have been sufficient to cure the error especially since the central issue of the case was not the use of the weapon in the robbery but rather the participation of the defendants in it. See People v. Brown, 32 Mich.App. 189, 188 N.W.2d 246 (1971).

Four assignments of error all involve statements of the prosecutor which allegedly prejudiced the defendants. The first occurred in the following exchange during cross-examination of the complainant:

'Q. Where do you live, Mr. James?

'Prosecutor: Your Honor, I don't think he should have to answer that question. There is some possibility that Mr. James might be intimidated.' (Emphasis added.)

The defendants' objection was sustained by the court and a prompt instruction was given to disregard the remark. Under these circumstances, we find no reversible error. People v. Hill, 28 Mich.App. 502, 184 N.W.2d 572 (1970); People v. Wolke, 10 Mich.App. 582, 159 N.W.2d 882 (1968).

The same is true of the issue raised with respect to a later remark of the prosecutor. During his closing argument, the prosecutor said:

'Now, we had a lot of conflicting testimony as to the extent of where the crime happened and where the police were driving and where they were. But, the way I get it it was at Lafayette and Townsend. Their home which is at 1038 Gladwyn, the corner or just off the corner of Lafayette and Gladwyn. Agnes and Gladwyn were the streets that the arrest was made on, away from the home and not in the direction of the bar.'* (Emphasis supplied.)

The defendants objected saying that the relative position of the above locations was not in evidence and that the remark could have a very prejudicial effect in view of their alibi defense. The objection was sustained by the court and a prompt instruction was given to disregard the statement of the prosecutor. Again we find no reversible error.

The next statement of the prosecutor occurred during the cross-examination of one of the defendants:

'Q. According to your record you did not show up the day you were scheduled for the UDAA, stealing of an automobile.'

Although the defendant's prior criminal record had already been covered on direct examination, the prosecutor should not have inquired about the above collateral matter. The remark does not, however, make a mistrial necessary.

The test for a mistrial motion is 'not whether there were some irregularities, but instead did the defendants have a fair and impartial trial'. People v. Watson, 307 Mich. 596, 606, 12 N.W.2d 476, 480 (1943); citing People v. O'Hara, 278 Mich. 281, 306--307, 270 N.W. 298, 307 (1936). In our opinion the remarks of the prosecutor did not deny the defendants a fair and impartial trial and it was not error, therefore, to deny the motion for a mistrial. The instructions of the court were sufficient to inform the jury on how to evaluate what was presented to them. If the defendants desired either an immediate cautionary instruction or further final instruction to the jury, a request should have been made. See People v. Peck, 39 Mich.App. 150, 197 N.W.2d 346 (1972).

The final statement of the prosecutor assigned as error was part of his closing argument:

'A couple of questions should be in your mind as to actions on the part of the defendants that they did not commit the crime. If they did not commit the crime, why would the police take them...