People v. Grimmett

• Citation: 185 N.W.2d 829,29 Mich.App. 609
• Decision Date: 21 January 1971
• Docket Number: 9869,Docket Nos. 8491,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George GRIMMETT, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 829

185 N.W.2d 829

29 Mich.App. 609

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George GRIMMETT, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold JOHNSON, Defendant-Appellant.

Docket Nos. 8491, 9869.

Court of Appeals of Michigan, Division No. 1.

Jan. 21, 1971.

Released for Publication April 21, 1971.

Carl Levin and Arthur J. Tarnow, Legal Aid and Defender Ass'n, Detroit, for George Grimmett.

Lawrence E. Weinberg, Gottlieb, Eason & Weinberg, Southfield, for Harold Johnson.

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

Before V. J. BRENNAN, P.J., and J. H. GILLIS and JEANNETTE, ^* JJ.

J. H. GILLIS, Judge.

Defendant Grimmett appeals from his conviction after jury trial of manslaughter; ¹ defendant Johnson appeals from his conviction upon a plea of guilty to a charge of murder in the second degree. ² Their appeals were consolidated by order of our Court.

Grimmett, Johnson, and a third defendant ³ were originally charged with first-degree murder ⁴ arising out of a robbery of a Detroit grocery store during which Grimmett was alleged to have shot and killed one man and injured another.

Defendant Johnson raises only one issue for our consideration: whether a felony accomplice can properly be held accountable for a murder perpetrated by the principal during the course of the felony. We concur with the views expressed by another panel of our Court in People v. Bowen (1968), 12 Mich.App. 438, 162 N.W.2d 911, where the identical argument failed to persuade the Court that it should change existing policy. See People v. Podolski (1952), 332 Mich. 508, 52 N.W.2d 201; People v. Mangiapane (1922), 219 Mich. 62, 188 N.W. 401. It is the legislature's duty, not ours, to alter established statutory rules of criminal responsibility.

Defendant Grimmett raises four issues on appeal. Initially, he advocates that the prosecution leading to this conviction was barred on double jeopardy ⁵ grounds after the trial court Sua sponte discharged the jury on the third day of his first trial. He relies primarily on our opinion in the appeal of his codefendant, People v. Brown (1970), 23 Mich.App. 528, 179 N.W.2d 58. Unlike his codefendant, however, defendant Grimmett through his counsel was instrumental in the trial court's discharge; Grimmett's consent to, or at least an acquiescence in, the discharge saves his second trial from constitutional taint.

Secondly, Grimmett objects to portions of the prosecution's closing argument. Viewed in the context of the entire argument and the subsequent curative instruction of the trial court, we cannot conclude the prosecutor's statements prejudiced defendant's right to a fair trial. People v. Burnstein (1933), 261 Mich. 534, 246 N.W. 217; People v. Alexander (1970), 26 Mich.App. 321, 182 N.W.2d 1.

Thirdly, Grimmett contends the trial court erred in failing to strike certain testimony when it became apparent it was not based on personal knowledge. While we believe the trial court erred in permitting the testimony to stand, ⁶ we fail to find any prejudice to defendant resulting therefrom. People v. Tiner (1969), 17 Mich.App. 18, 168 N.W.2d 911.

Finally, Grimmett claims that the trial court's sentence of fourteen years and eleven months to fifteen years violates the indeterminate sentence law. ⁷ People v. Lessard (1970), 22 Mich.App. 342, 177 N.W.2d 208. We note, however, that in Lessard the Court was faced with the admitted policy of a trial court to defeat the function of the parole board. In particular, the Court stated, '(W)e do not intend to dictate to the trial court what the minimum sentence should be.' 22 Mich.App. at 350, 177 N.W.2d at 212. We not also the 177 N.W.2d at 212. We note also the sentencing in the instant case; although the minimum imposed appears harsh, the court's comments mitigate against any request to invade the discretion accorded the sentencing court. People v. Pate (1965), 2 Mich.App. 66, 138 N.W.2d 553; People v. Jew (1970), 21 Mich.App. 408, 175 N.W.2d 544; People v. Bryant (1970), 23 Mich.App. 627, 179 N.W.2d 236.

Affirmed.

* FRANK E. JEANNETTE, Circuit Judge for the County of Macomb, appointed by the Supreme Court for the hearing month of December, 1970, pursuant to § 306 P.A.1964, No. 281.

1 M.C.L.A. § 750.321 (Stat.Ann.1954 Rev. § 28.553).

2 M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549).

3 The third defendant also appealed separately. See People v. Brown (1970), 23 Mich.App. 528, 170 N.W.2d 58, where the details of the crime are more fully set forth.

4 M.C.L.A. § 750.316 (Stat.Ann.1954 Rev. § 28,548).

5 U.S.Const. Am. 5; Mich.Const.1963, art. 1, § 15.

6 Bennett v. Smith (1879), 40 Mich. 211; Perri v. Tassie (1940), 293 Mich. 464, 292 N.W. 370; In re Powers' Estate (1965), 375 Mich. 150, 134 N.W.2d 148.

7 M.C.L.A. § 769.8 (Stat.Ann.1954 Rev. § 28.1080).