People v. Grace, Docket No. 15141

• Decision Date: 28 November 1973
• Docket Number: No. 1,Docket No. 15141,1
• Citation: 50 Mich.App. 604,213 N.W.2d 853
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy GRACE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 853

213 N.W.2d 853

50 Mich.App. 604

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roy GRACE, Defendant-Appellant.

Docket No. 15141.

Court of Appeals of Michigan, Division No. 1.

Nov. 28, 1973.

Released for Publication Jan. 16, 1974.

William J. Carpathe, Detroit, for defendant-appellant.

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

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

LESINSKI, Chief Judge.

Defendant was convicted by jury of assault with intent to rape. M.C.L.A. § 750.85; M.S.A. § 28.280. He was sentenced to prison for a term from five to ten years and appeals as of right.

Several issues are raised on appeal, but a review of the record and the briefs discloses no reversible error.

Defendant first contends that the trial court's deviation from GCR 1963, 507.6, which prescribes the procedure for closing argument, was per se reversible error. The prosecutor began with a perfunctorily short closing argument, followed by the defense's reply. In his rebuttal argument, the prosecutor proceeded to make a detailed argument, going into the testimony of the defense for the first time. The trial judge, who agreed with the defendant's contention that the prosecutor's rebuttal had gone beyond the scope of the first exchange of arguments, felt that a proper remedy would be to allow the prosecutor to continue his extensive rebuttal, but to let the defense make a second reply.

There is some question as to whether the prosecutor did in fact go beyond the scope of the defendant's first reply in his rebuttal. There is no question that the procedure of allowing the prosecutor to continue in the face of a sustained objection as to scope, and granting the defense a second reply as a remedy, does not technically comply with GCR 1963, 507.6.

However, two overriding principles preclude reversal on this ground. First, the trial court has 'great power and wide discretion' in regard to the conduct of argument. People v. Green, 34 Mich.App. 149, 152, 190 N.W.2d 686, 687 (1971). See also, M.C.L.A. § 768.29; M.S.A. § 28.1052. Second, technical errors will not justify reversal unless prejudice is demonstrated sufficient to amount to a miscarriage of justice. M.C.L.A. § 769.26; M.S.A. § 28.1096.

Defendant alleges prejudice in the remote possibility that since the jurors had been advised by both counsel to the effect that the burden of proof is on the party allowed to speak twice in closing argument, and since the defense alos spoke twice, the and since the defense also spoke twice, the proof. The trial court properly instructed the jury on burden of proof. Furthermore, any prejudice due to the prosecution's extension beyond proper scope does not satisfy the substantial miscarriage of justice test and was clearly outweighed by the unusual advantage the court allowed in granting the defense the opportunity to speak twice and to close the argument.

The defendant next challenges the sufficiency of the evidence. His sufficiency argument runs the following tortuous course: (1) the prosecutor argued alternative theories in his closing argument--(a) the prosecution witness should be believed and the alibi witnesses disbelieved; (b) if the alibi witnesses are believed, since the places where the alibi witnesses established the defendant were close to the scene of the crime (four or five blocks to one mile), the defendant could have slipped away to commit the crime and then return to the alibi witnesses; (2) the jury foreman requested a map of the area in question; (3) the jury therefore apparently believed the alibi witnesses or it would not have considered the prosecutor's alternative theory as evidenced by the jury's request for additional distance information; (4) since there was insufficient evidence produced by the prosecutor to sustain his alternative theory of the defendant slipping away; (5) therefore, there was insufficient evidence to convict.

This argument lacks logical or legal merit. The fact that the jury foreman requested additional information on distances and that one juror in particular indicated that the verdict could go either way based upon the map conclusively establishes only that the jury Considered the prosecutor's alternative argument, as is their duty, and has no necessary logical connection to the speculative conclusion that the jury as a whole believed the alibi witnesses and adopted the prosecutor's alternative theory to convict. The legal standard for determining sufficiency questions is simply whether the prosecution introduced sufficient proof of all the elements of the crime. People v. Cunningham, 20 Mich.App. 699, 174 N.W.2d 599 (1969); People v. Spann, 3 Mich.App. 444, 451, 142 N.W.2d 887, 890 (1966). In the instant case, the testimony of the victim of the crime and her sister, if believed, was more than adequate to establish all of the elements of assault within intent to rape.

The defendant argues error in the failure of the trial court Sua sponte...