People v. Gant, Docket No. 13766

• Decision Date: 26 June 1973
• Docket Number: No. 2,Docket No. 13766,2
• Citation: 209 N.W.2d 874,48 Mich.App. 5
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Percy GANT, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 874

209 N.W.2d 874

48 Mich.App. 5

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Percy GANT, Jr., Defendant-Appellant.

Docket No. 13766.

Court of Appeals of Michigan, Division No. 2.

June 26, 1973.

Released for Publication Aug. 24, 1973.

Donald B. Rogers, June & Rogers, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and BRONSON and VanVALKENBURG, ^* JJ.

BRONSON, Judge.

Defendant was convicted by jury verdict of larceny in a building and sentenced to a prison term of 3 1/2 to 4 years. M.C.L.A. § 750.360; M.S.A. § 28.592. From this conviction defendant appeals as a matter of right, raising three allegations of error: (1) did the trial judge commit reversible error by denying defendant's timely motion for a directed verdict, (2) did the trial judge commit reversible error by denying defendant's motion for mistrial, and (3) is defendant's sentence of 3 1/2 to 4 years valid in light of People v. Tanner?

On April 14, 1971, defendant entered the garage of a Montgomery Ward store in Flint, Michigan, and inquired about tires. Defendant subsequently drove his car into the garage and proceeded to the sales area. Upon returning, defendant was accompanied by two men who placed a box containing an air conditioner in defendant's car with defendant's assistance. The garage manager approached defendant and asked for a sales slip, which he was unable to produce.

The prosecution witnesses testified that defendant said that the air conditioner was his and his wife had the sales slip. Defendant further stated that the air conditioner was a lay-away purchase listed in the name of an uncle or brother-in-law. At trial defendant offered a contrary recitation of the facts, exculpatory in nature. Defendant testified that he went to Ward's to purchase tires and offered to take two acquaintances who wanted to pick up a package. He told them to meet him in the garage and believed that the box which they placed in his car was the package to which the men had made previous reference. At the conclusion of trial the jury found defendant guilty of larceny in a building.

Defendant first challenges the trial judge's denial of his motion for directed verdict. The motion was based on the prosecution's alleged failure to prove that defendant participated in the taking and carrying away of the property with the requisite felonious intent. A review of the record discloses sufficient evidence, both direct and circumstantial, for the jury to find the requisite elements of the crime charged. People v. Qualls, 9 Mich.App. 689, 158 N.W.2d 60 (1968); People v. Compton, 23 Mich.App. 42, 178 N.W.2d 133 (1970); People v. Compian, 38 Mich.App. 289, 196 N.W.2d 353 (1972). The trial judge did not abuse his discretion by denying the motion for directed verdict upon these facts.

Defendant's second allegation of error is based upon the trial judge's denial of his motion for mistrial. This motion was based upon several adverse rulings by the trial judge which allegedly placed prejudicial testimony and argument before the jury. Defendant claims that testimony regarding his criminal involvement preceded the establishment of the corpus delicti resulting in prejudice justifying a mistrial. This argument is based upon the solicitation by the prosecutor of a single statement from his witness upon direct examination which tangentially suggested defendant's guilt. The trial court reviewed the objection and held that the question was proper for the purpose of establishing the reason for defendant's presence in the Montgomery Ward store. Not discovering the prejudice asserted by defendant, we affirm the trial judge's decision.

Defendant further claims that a mistrial should have been granted because of the prosecutor's cross-examination of defendant and closing argument upon defendant's failure to call the two unidentified companions to support his defense. We cannot agree that this conduct created prejudice requiring a declaration of mistrial. Our courts have permitted the prosecutor to offer a rhetorical argument regarding a defendant's failure to produce witnesses which could corroborate his story. People v. Hunter, 218 Mich. 525, 188 N.W. 346 (1922), followed in People v. Falkner, 36 Mich.App. 101, 193 N.W.2d 178 (1971), rev'd on other grounds, 389 Mich. 682, 209 N.W.2d 193 (1973). The underlying rationale is that the constitutional protection against defendant's failure to take the stand does not apply to witnesses. People v. Rich, 237 Mich. 481, 212 N.W. 105 (1927). For this reason, the prosecutor has been permitted to comment upon (1) defendant's failure to call an accomplice or indicted co-defendant and (2) the failure of such witnesses to testify. People v. McGarry, 136 Mich. 316, 99 N.W. 147 (1904); People v. Schultz, 210 Mich. 297, 178 N.W. 89 (1920). This rule is subject to an exception, not relevant to the present case, that the prosecutor may not comment upon such witnesses' failure to testify when they are called by the defendant and invoke their constitutional right to remain silent.

In the present case defendant disavowed any involvement in the charged crime and...