People v. Green, Docket No. 10701

• Decision Date: 27 May 1971
• Docket Number: No. 1,Docket No. 10701,1
• Citation: 34 Mich.App. 149,190 N.W.2d 686
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James N. GREEN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 686

190 N.W.2d 686

34 Mich.App. 149

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James N. GREEN, Defendant-Appellant.

Docket No. 10701.

Court of Appeals of Michigan, Division No. 1.

May 27, 1971.

Released for Publication Oct. 22, 1971.

Leave to Appeal Denied Nov. 17, 1971.

Marshall C. Disner, Fruitman & Disner, Detroit, for defendant-appellant.

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

Before J. H. GILLIS, P.J., and FITZGERALD and T. M. BURNS, JJ.

PER CURIAM.

Defendant was charged with assault with intent to murder, M.C.L.A. § 750.83 (Stat.Ann.1962 Rev. § 28.278) and found guilty by a jury of assault with intent to do great bodily harm less than murder. M.C.L.A. § 750.84 (Stat.Ann.1962 Rev. § 28.279). Defendant was sentenced to not less than nine years nor more than ten years in the State Prison for Southern Michigan. Defendant's motion for a new trial was denied and he brings this appeal as of right, raising five issues for review.

1. THAT A NEW TRIAL SHOULD BE GRANTED BECAUSE TESTIMONY OF THE PEOPLE'S WITNESSES AT TRIAL WAS UNWORTHY OF BELIEF.

Defendant's first issue on appeal attacks the credibility of the witnesses who testified at trial. The jury is best able to determine the credibility of the witnesses and the weight to be given their testimony. People v. Clark (1954), 340 Mich. 411, 65 N.W.2d 717; People v. Lloyd (1967), 5 Mich.App. 717, 147 N.W.2d 740; People v. Mills (1969), 16 Mich.App. 179, 167 N.W.2d 890; People v. Moss (1969), 16 Mich.App. 295, 167 N.W.2d 788. In this case both defendant and the complaining witness testified at trial. In such a situation it is for the jury to decide which side to believe. People v. Mills, Supra. There was sufficient testimony presented by the people, if believed by the jury, to justify a finding of guilty beyond a reasonable doubt of the crime of assault with intent to do great bodily harm less than murder. M.C.L.A. § 750.84.

2. THAT THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY.

It is axiomatic that the jury instructions must be considered in their entirety; error cannot be established by one phrase lifted from the whole charge, unless the phrase prejudices the entire charge. People v. Robinson (1968), 11 Mich.App. 162, 160 N.W.2d 744. Careful reading of the entire charge to the jury leads to the conclusion that the charge was not in any way prejudicial to defendant. Even the parts to which defendant draws particular attention, when standing alone, do not represent improper, unfair, or prejudicial instructions.

3. THAT THE TRIAL COURT AND ASSISTANT PROSECUTOR MADE PREJUDICIAL COMMENTS TO THE JURY.

The remarks of the prosecutor complained of by defendant were in response to issues raised by defense counsel. In such a case, remarks by a prosecutor, even if improper, do not constitute reversible error where made primarily in response to matters previously discussed by defense counsel. People v. George (1965), 375 Mich. 262, 134 N.W.2d 222; People v. Thomas (1969), 17 Mich.App. 740, 170 N.W.2d 286. At no point did the prosecutor state any personal opinion of defendant's guilt which would warrant this Court in reversing defendant's conviction. People v. Ignofo (1946), 315 Mich. 626, 24 N.W.2d 514; People v. Slater (1970), 21 Mich.App. 561, 175 N.W.2d 786. It should further be noted that the defendant did not object to the prosecutor's remarks at trial. Only where cautionary instructions would not have cured any prejudice arising from those remarks will an appellate court review the matter. People v. Humphreys (1970), 24 Mich.App. 411, 180 N.W.2d 328.

4. THAT THE TRIAL COURT ERRED IN LIMITING DEFENSE COUNSEL'S CLOSING ARGUMENT.

It is the duty of the trial judge to control all proceedings during trial, and to limit the introduction of evidence and argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matter involved. M.C.L.A. § 768.29 (Stat.Ann.1954 Rev. § 28.1052). In matters of trial conduct the trial judge has great power and wide discretion. People v. Cole (1957), 349 Mich. 175, 84 N.W.2d 711; People v. Lloyd (1967), 5 Mich.App. 717, 147 N.W.2d 740; People v. Whitney (1895), 105 Mich. 622, 63 N.W. 765. The record discloses that the trial judge maintained proper judicial impartiality in conducting the trial. Therefore, reversal may not be had on this issue. People v. Bedsole (1969), 15 Mich.App. 459, 166 N.W.2d 642; People v. Wilson (1969), 21 Mich.App. 36, 174 N.W.2d 914.

It is clearly within the discretion of the trial judge to limit the arguments of counsel. GCR 1963, 507.7, M.C.L.A. § 768.29 (Stat.Ann.1954 Rev. § 28.1052), 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp. 403, 404.

Careful reading of the 34 pages consumed by defendant's closing argument reveals that defendant had more than adequate time to cover his arguments. There was no abuse of discretion in limiting defense counsel's arguments.

5. THAT THE TRIAL COURT ERRED IN FAILING TO INDORSE CERTAIN ALLEGED RES GESTAE WITNESSES.

Apart from the cumulation of testimony, any Res gestae witness shall be indorsed and called by the prosecution if such testimony is reasonably necessary to protect the accused against a false accusation. People v. Kayne (1934), 268 Mich. 186, 255 N.W. 758; People v. Dickinson (1966), 2 Mich.App. 646, 141 N.W.2d 360. The defendant was identified by the complaining witness and a number of others as the one who fired the shot; defendant himself admitted shooting the complainant. No other testimony of any Res gestae witness was necessary to protect defendant from false accusation. Considerable efforts were made to locate James Fason as requested by defendant. However, it is clear that no prejudice resulted to defendant from the failure to present such witness.

Defendant did not raise the question of calling a Res gestae witness, the doctor who treated complainant, until his motion for new trial. It is the...