People v. Fuller, Docket No. 11308

• Decision Date: 16 January 1973
• Docket Number: No. 1,Docket No. 11308,1
• Citation: 44 Mich.App. 297,205 N.W.2d 287
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cornell FULLER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 287

205 N.W.2d 287

44 Mich.App. 297

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cornell FULLER, Defendant-Appellant.

Docket No. 11308.

Court of Appeals of Michigan, Division No. 1.

Jan. 16, 1973.

Rehearing Denied Feb. 26, 1973.

Released for Publication March 27, 1973.

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

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

Before QUINN, P.J., and V. J. BRENNAN and O'HARA, ^* JJ.

QUINN, Presiding Judge.

A jury convicted defendant of first degree murder, M.C.L.A. § 750.316; M.S.A. § 28.548, and he was sentenced. His application for delayed appeal was granted.

On May 18, 1970, a residential fire occurred at 1554 Lemay in Detroit which claimed the lives of two young girls. A cause of the fire was a Molotov cocktail thrown at the residence by one Meadows. The prosecution claimed that defendant aided and abetted Meadows by acting as a lookout while the latter threw the Molotov cocktail. Other facts will be noted in the discussion of the issues raised on appeal.

The first issue is a weight of the evidence question. Our inquiry is, was evidence produced which, if believed, could certainly lead to a reasonable inference that defendant was a party to the offense?, People v. Ford, 19 Mich.App. 519, 173 N.W.2d 3 (1969). There was evidence that defendant came to the scene with Meadows and others; that defendant stood at a gate near the alley behind the house while Meadows lit and threw the Molotov cocktail; that during this time, defendant looked up and down the alley more than once; and that defendant ran from the scene with Meadows. From these facts a jury could reasonably infer that defendant was a party to the offense.

During final argument, the prosecuting attorney commented on the failure of defendant to produce additional alibi witnesses. Defendant now claims that this constitutes an impermissible inference of guilt. No objection to the comment was made at trial. The defense was alibi and the one alibi witness produced named others who were present when defendant was allegedly in the presence of the alibi witness. It was not shown that the others were unavailable. That the comment complained of was proper see People v. Falkner 36 Mich.App. 101, 193 N.W.2d 178 (1971).

We find no merit in defendant's contentions that the trial court affirmatively mislead the jury with respect to sentence and that sentence constituted cruel and unusual punishment.

At trial, defendant offered to stipulate that a burning took place and that two deaths occurred as a result thereof. The prosecuting attorney declined the offer and put in his proof of these facts. Defendant asserts error because he claims the prosecuting attorney's refusal permitted prejudicial and unnecessary evidence to be heard by the jury. The refusal to accept the offer cannot be the basis of error, however. As stated in People v. MacPherson, 323 Mich. 438, 35 N.W.2d 376 (1949):

'Furthermore, the prosecutor had the right to prove by competent testimony the facts material to the people's case. Counsel for defendant could not preclude the exercise of such right by undertaking to make an admission on behalf of his client.'

The testimony of witness Coleman was crucial to the prosecution....