People v. Hayton, Docket No. 5966

• Decision Date: 09 December 1970
• Docket Number: No. 2,Docket No. 5966,2
• Citation: 28 Mich.App. 673,184 N.W.2d 755
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edward HAYTON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 755

184 N.W.2d 755

28 Mich.App. 673

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Edward HAYTON, Defendant-Appellant.

Docket No. 5966.

Court of Appeals of Michigan, Division No. 2.

Dec. 9, 1970.

Released for Publication March 30, 1971.

Leave to Appeal Denied April 13, 1971.

John Boghosian, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas J. Kizer, Jr., Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and DANHOF and SNOW, ^* JJ.

SNOW, Judge.

Defendant appeals from his 1968 conviction of murder in the first degree.' ¹ The evidence at trial showed that two men entered a pharmacy in the village of Hamburg; that George Reck, Sr., the owner, and his son, 19, were working in the store at the time; that after threatening the proprietor with a gun, the men took $100 from the cash register; and that the men ordered both Recks to lie on the floor, then shot them. The senior Reck died the following day. His son gave police a description of both men. Defendant, who the son had observed for a much longer period, was described as 6 feet in height, weighing 140 to 150 pounds, with long greasy hair and 'pimple-like' scars on his face. Subsequently, the son positively identified the defendant as one of the perpetrators, although defendant showed he had a clear complexion and had weighed between 180 and 190 pounds for several years.

At trial, defendant made the credibility of the son's identification his primary defense because this was the only evidence the people could produce connecting him with the crime. On appeal, he thus urges as seriously prejudicial to his right to a fair trial, the unresponsive answer of the investigating detective which he feels lent weight to that identification.

'Mr. Boghosion (Defense Counsel): The same day you showed him the photograph?

'Detective Demsky: Right. It was late that evening. It was around three--I can tell you the time I showed him the picture too, if you like--2:45 p.m. I was told, 'That's the guy; that's him.'

'Mr. Boghosian: I ask that be stricken, Your Honor. It is not responsive; prejudicial and hearsay.

'The Court: That may be stricken.'

We note, however, that the person to whom the above remark was attributed was available as a witness, and in fact did testify to the occurrence in exactly the same terms:

'Mr. Boghosian: (W)hen you looked at that photograph, what did you say to Detective Demsky?

'George Reck, Jr.: I said, 'This is the man."

Consequently any error that may have arisen as a result of the unresponsive answer of Detective Demsky was cured by the trial court's action in striking the answer, and more significantly, by other competent testimony showing the same fact. People v. Kregger (1953), 335 Mich. 457, 469, 56 N.W.2d 349.

Defendant also contends that remarks of the trial court in two instances required that a mistrial be granted. A motion for mistrial, however, is one addressed to the discretion of the trial court. People v. Bigge (1941), 297 Mich. 58, 297 N.W. 70; People v. Schram (1965), 1 Mich.App. 279, 136 N.W.2d 44. We find no abuse of that discretion in this case where the remarks, when viewed in the context in which they were made, were in one instance an attempt to resume the proceedings after an interruption for an objection, and in the second case, an attempt to preclude a further unresponsive answer by the witness Demsky.

Finally, defendant argues that the evidence neither established a Prima facie case against him nor supported the jury's verdict. The testimony of the decedent's son, outlining the elements of the robberymurder...