People v. Hall

• Decision Date: 08 October 1974
• Docket Number: No. 3,Docket No. 17306,3
• Citation: 56 Mich.App. 10,223 N.W.2d 340
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert W. HALL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 340

223 N.W.2d 340

56 Mich.App. 10

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert W. HALL, Defendant-Appellant.

Docket No. 17306.

Court of Appeals of Michigan, Division No. 3.

Oct. 8, 1974.

Released for Publication Nov. 21, 1974.

Rehearing Denied Nov. 27, 1974.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH,* JJ.

T. M. BURNS, Judge.

Defendant Robert W. Hall was convicted by a jury on January 9, 1973, of second-degree murder. M.C.L.A. § 750.317; M.S.A. § 28.549. He was sentenced on February 13, 1973, to a prison term of from 30 to 50 years, with appropriate credit for time already spent in jail. Defendant now appeals his conviction and sentence as of right.

On the night of May 20--21, 1972, three young men from Michigan City, Indiana, Kenneth Behrendt, Claude Novak, and the victim, John Blank, drove to Casey's Pub in New Buffalo, Michigan. At the pub, these men talked to some friends for a short period of time and then talked to some girls. A short time later the defendant approached the three men and began staring at them, especially at John Blank. Defendant threatened Blank, but Blank attempted to ignore him. When the three men left, with John Blank in the lead, defendant followed taking a beer bottle with him. Defendant broke the beer bottle outside the pub and poked it at Blank when Blank was getting into his car. Blank apparently disarmed the defendant in some manner and chased him down the street.

As Blank was returning to his car after the chase, a group of young men led by the defendant attacked him and the other two Indiana men. After the fight which ensued, Blank, who had suffered chest and neck wounds, was taken to a state police post for aid by his two friends. He was subsequently transported to a hospital where he died a short time later.

The doctor who performed the autopsy on Blank testified at trial that the death was caused by a stab wound through the heart and that the wound was one of two in the chest area which could have been caused only by a knife, letter opener, or similar instrument at least two inches in length.

The primary question presented to the jury was whether or not the defendant killed John Blank. A customer at the pub testified that she went outside with a number of other people to see the fight, but that it had already broken up when she got there. However, she stated that she saw defendant holding an instrument resembling a knife in his hand while she was standing outside the bar.

Another witness testified that defendant had run up to a house near the pub at which she and others, including defendant, had been attending a party, and asked for a knife. A knife used by the witness to open beer bottles could not be found later. Other pertinent facts will be presented in our discussion of the several issues raised by defendant.

Defendant first contends that the prosecutor, during closing argument, improperly referred to the defendant's failure to testify. No objection to the complained-of statements was raised at trial and no curative instruction was requested. Therefore, this issue is not properly before us. People v. McLendon, 51 Mich.App. 543, 215 N.W.2d 742 (1974); People v. Pacely, 51 Mich.App. 67, 71, 214 N.W.2d 561 (1974).

Second, defendant argues that the prosecutor improperly commented in the credibility of various witnesses. We consider this Court's statement in People v. Duke, 50 Mich.App. 714, 717, 213 N.W.2d 769, 771 (1973), to be dispositive of this issue:

'A prosecutor is entitled to comment on the evidence and draw reasonable inferences therefrom. He is free in final argument to relate the facts to his theory of the case. In this case, the prosecutor attempted to establish a permissible relationship between his theory and the facts in evidence. Defendant made no objection at the time the allegedly offensive statements were made. There was no request for curative or corrective instructions. Hence the error, if any, was waived.' See People v. Pacely, Supra.

Third, defendant claims that the trial court committed reversible error by Sua sponte instructing the jury to disregard defendant's failure to testify. We decline to accept the authorities cited by defendant as controlling precedent, but rather feel that the following statement from our recent decision in People v. Andrews #1, 52 Mich.App. 719, 725--726, 218 N.W.2d 379, 382 (1974), controls this issue:

'The essence of the defendant's argument is that such Sua sponte instructions amount to a comment or reference by the trial judge on the defendant's failure to testify in his own behalf in violation of M.C.L.A. § 600.2159; M.S.A. § 27A.2159. The appellate defender makes a cogent argument for that position. The policy behind the statute is that 'neglect to testify shall not create any presumption against (the defendant)'. To instruct the jury to that effect in the absence of request to do so represents commendable concern for the rights of the defendant and should in no way work against his interests. People v. Waters, 16 Mich.App. 33, 36--37, 167 N.W.2d 487 (1969). There is no merit to this contention of the defendant. People v. Harris, 52 Mich.App. 739, 218 N.W.2d 150 (1974).'

Fourth, the defendant contends that the trial court improperly instructed the jury on an offense higher than that charged, namely first-degree murder. In charging the jury on the elements of the charged offense of second-degree murder, the trial court referred to first-degree murder in precluding the jury from considering the element of premeditation. These references to premeditation and the higher offense of first-degree murder were contained in only two paragraphs of the trial court's entire 25-page charge to the jury.

We note at the outset that defense counsel did not object to the instruction in question and in fact expressed satisfaction with it. Therefore, the giving of this allegedly erroneous instruction does not warrant reversal absent a showing of manifest injustice. People v. McShan, 53 Mich.App. 407, 219 N.W.2d 792 (1974); People v. Spaulding, 42 Mich.App. 492, 202 N.W.2d 450 (1972).

Jury instructions should be read in their entirety to determine whether any manifest injustice occurred. People v. Elkins, 39 Mich.App. 603, 198 N.W.2d 31 (1972). A close consideration of the instruction read as a whole fails to disclose any reversible error or prejudice to defendant, let alone manifest injustice. Therefore, defendant's claim, raised here for the first time on appeal, is meritless.

Fifth, defendant asserts that the trial court's instructions on lesser included offenses were coercive and unduly restricted the jury in their right to find defendant guilty of a lesser included offense. Defendant cites People v. Ray, 43 Mich.App. 45, 204 N.W.2d 38 (1972), in support of his position.

After reading them in their entirety, we are convinced that these instructions on lesser included offenses do not sustain defendant's contention. As opposed to the circumstances presented in Ray, here there was no 'requirement of unanimous agreement on defendant's innocence of the greater charge before discussion of the lesser charges (was) permitted'. 43 Mich.App. 45, 50, 204 N.W.2d 38, 41. See also People v. James, 51 Mich.App. 777, 216 N.W.2d 473 (1974).

Sixth, defendant maintains that the trial court imposed sentence on the basis of erroneous facts contained in the presentence report. At sentencing, the trial court noted that it had read the presentence report and talked with various probation officers and defendant's attorney.

Defendant first argues that the trial court considered prior constitutionally infirm convictions contained in the presentence report. We refrain from considering this claim since defendant has not complied with the procedures set forth in People v. Moore, 391 Mich. 426, 440--441, 216 N.W.2d 770 (1974), I.e., defendant has not given the sentencing court the initial opportunity to resolve this claim.

Defendant next contends that it was error for the trial court to consider this presentence report since it contained arrests which did not result in convictions.

Defendant presents no evidence that the trial court relied in any way on these arrests in determining the sentence defendant was to receive, nor does he challenge the arrests as being listed inaccurately. We, therefore, conclude that there was no error committed requiring resentencing and that defendant has suffered no prejudice. People v. Pettis, 49 Mich.App. 503, 212 N.W.2d 266 (1973); People v. Martin, 48 Mich.App. 437, 210 N.W.2d 461 (1973); People v. Lotze, 47 Mich.App. 460, 209 N.W.2d 497 (1973).

Defendant's claim that reference to an incident to which defendant was connected merely by insinuation was improperly included in the presentence report is likewise without merit. It is not challenged as inaccurate, and furthermore the trial court is presumed to attach the proper weight to the reference to such an incident. People v. Martin, Supra; People v. Hildabridle, 45 Mich.App. 93, 206 N.W.2d 216 (1973).

Seventh, defendant contends that the prosecutor improperly threatened and in a witness at trial and that he is, therefore, entitled to a new trial. Defense counsel did not object to any of the questions asked or any of the remarks made by the prosecutor. It is well settled that a claim of appeal, raised for the first time in the appellate court, which was not made in the court below, will not be considered in the appellate court. People v. Harley, 49 Mich.App. 729, 212 N.W.2d 810 (1973); People v. Eroh, 47 Mich.App. 669, 209 N.W.2d 832 (1973); People v. Meier, 47 Mich.App. 179, 209 N.W.2d 311 (1973); People v. Taylor, 46 Mich.App. 259, 207 N.W.2d 899 (1973); People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969). Therefore, d...