People v. Hedelsky

• Citation: 162 Mich.App. 382,412 N.W.2d 746
• Decision Date: 01 October 1987
• Docket Number: Docket No. 89842
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James HEDELSKY, Defendant-Appellant. 162 Mich.App. 382, 412 N.W.2d 746
• Court: Court of Appeal of Michigan — District of US

Page 746

412 N.W.2d 746

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

Docket No. 89842.

162 Mich.App. 382, 412 N.W.2d 746

Court of Appeals of Michigan.

Submitted June 18, 1987.

Decided August 18, 1987.

Released for Publication Oct. 1, 1987.

[162 MICHAPP 383] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals and Olga Agnello-Raspa, Asst. Pros. Atty., for the People.

Norman R. Robiner, Detroit, for defendant-appellant on appeal.

[162 MICHAPP 384] Before HOOD, P.J., and WEAVER and WARSHAWSKY, ^* JJ.

PER CURIAM.

During an argument with another patron of a Wayne County bar on or about July 2, 1986, defendant fired a shot which struck and killed a bystander. A jury convicted defendant of voluntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to five to fifteen years for the manslaughter conviction, five to ten years for the assault conviction, and two years for the felony-firearm conviction. Defendant appeals as of right.

I

On appeal, defendant asserts that he was denied a fair trial due to acts of prosecutorial misconduct. As to several of these instances, defense counsel failed to object at trial. Therefore the issues are not preserved for review unless defendant can show that (1) the prejudicial effect of the alleged misconduct was so great that even a cautionary jury instruction would not have overcome it and (2) failure to consider the issue would result in a miscarriage of justice. People v. Jancar, 140 Mich.App. 222, 233, 363 N.W.2d 455 (1985). Defendant has shown neither. However, since part of defendant's argument of ineffective assistance of counsel is premised on the issue of prosecutorial misconduct, we will address it.

Several of defendant's subarguments as to prosecutorial misconduct challenge the prosecutor's comments during rebuttal and cross-examination [162 MICHAPP 385] of defendant. We find all of these arguments unconvincing. First, where defendant put into evidence testimony of his peaceful nature and stated that he carried a knife as a tool and not as a weapon, on cross-examination the prosecutor was allowed to rebut this testimony. People v. Bouchee, 400 Mich. 253, 266-267, 253 N.W.2d 626 (1977). People v. Smith, 80 Mich.App. 106, 117, 263 N.W.2d 306 (1977), lv. den. 406 Mich. 920, 275 N.W.2d 259 (1979).

Second, although a prosecutor may not argue in such a manner as to shift the burden onto the defendant to explain something, People v. Nabers, 103 Mich.App. 354, 369, 303 N.W.2d 205 (1981), rev'd. on other grounds, 411 Mich. 1046, 309 N.W.2d 187 (1981), the prosecutor may comment on the evidence and draw reasonable inferences therefrom. Jancar, supra at 233, 363 N.W.2d 455. Hence the prosecutor was allowed to argue from the facts and evidence that defendant was lying about his alleged memory loss. People v. Jansson, 116 Mich.App. 674, 693, 323 N.W.2d 508 (1982).

Third, the prosecutor's comments during cross-examination to the effect that defendant's injuries resulting from the altercation were not serious enough to cause his death, whereas the deceased was not so fortunate, may have been undesirable but did not constitute error requiring reversal because they did not infect the trial with unfairness such as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144, 157 (1986), reh. den., --- U.S. ----, 107 S.Ct. 24, 92 L.Ed.2d 774 (1986).

Equally without merit is defendant's attack on the prosecutor's remarks during closing argument and rebuttal, that there should be "some meaning to his death" and "a sense of justice after he had died," as an improper appeal to the jury's sympathy. While it is true that arguments which are [162 MICHAPP 386] little more than an appeal to the jury's sympathy for the victim are improper, People v. Wise, 134 Mich.App. 82, 104 351 N.W.2d 255 (1984), lv. den. 422 Mich. 852 (1985), defendant mischaracterizes the remarks by taking them out of context. A prosecutor's closing argument should be considered in its entirety. People v. Cowell, 44 Mich.App. 623, 627, 205 N.W.2d 600 (1973). The entire closing argument in this case shows that the prosecutor asked the jury to examine all of the evidence and, if the evidence indicated defendant's guilt beyond a reasonable doubt, a guilty verdict would provide a sense of justice for the tragic death of an innocent bystander.

Nor are we persuaded by defendant's assertion that the prosecutor allegedly argued facts not of record. From the facts adduced at trial it was reasonable for the prosecutor to argue that defendant had two guns and was not acting in self-defense. But even assuming the prosecutor's comments to be error, the error was harmless beyond a reasonable doubt. This is because the alleged error was not so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless and because the evidence against defendant was so overwhelming that no juror would have voted for acquittal. People v. Christensen, 64 Mich.App. 23, 32-33, 235 N.W.2d 50 (1975). Defendant was entitled to a fair trial, not a perfect one. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986).

II

Defendant's next contention is that he was denied the effective assistance of counsel because his counsel failed to present a defense of diminished capacity.

[162 MICHAPP 387] Defendant should have raised the issue of ineffective assistance of counsel by moving in the trial court for a new trial or an evidentiary hearing. People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d 922 (1973). Failure to so move usually forecloses appellate review. People v....