People v. Histed

• Court: Court of Appeal of Michigan
• Writing for the Court: HOLBROOK
• Citation: People v. Histed, 224 N.W.2d 721, 56 Mich.App. 630 (Mich. App. 1974)
• Decision Date: 26 November 1974
• Docket Number: No. 2,Docket No. 17471,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Doyle HISTED, Defendant-Appellant

Page 721

224 N.W.2d 721

56 Mich.App. 630

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick Doyle HISTED, Defendant-Appellant.

Docket No. 17471.

Court of Appeals of Michigan, Division No. 2.

Nov. 26, 1974.

Released for Publication Jan. 17, 1975.

Pamela G. Wistrand, Wistrand, Wistrand & Brendle, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and BEBEAU,* JJ.

HOLBROOK, Presiding Judge.

On February 16, 1973, the defendant was found guilty by a jury of assault with intent to rob while armed, M.C.L.A. § 750.89; M.S.A. § 28.284. Defendant was sentenced on April 12, 1973 to a term of from 20 to 30 years in prison.

The records show that Robert Haggerty, the bartender at the Jet Bar, had known the defendant for quite a few years. He testified that defendant came in about 1:45 a.m. on November 15, 1972, ordered a 7-7, talked with him about roofing and asked him for a 'sack'. Defendant had a gun and told him to 'full it up'. Defendant took ones, fives, tens, and twenties from the cash register and then told all the men in the bar to throw their billfolds on the floor. Defendant had him (Haggerty) check some of the wallets and then ordered everybody into the cooler.

Edward Rooker was in the bar when the incident occurred but was not sure that defendant was the man with the gun in the bar since defendant had a beard at the time of trial.

Daniel Dowr, Jr., was also in the Jet Bar at the time. Dowr had $30--$35 taken and identified defendant as the man with the gun that night.

William McClure had 15 cents taken from him but was unable to recall much of the incident. McClure, however, did not think that defendant looked like the man with the gun, possibly because the man with the gun did not have a beard.

Kay Bare said that the defendant resembled the man with the gun at the Jet Bar on November 15 even though the man in the bar did not have a beard. She had seen defendant in the bar prior to and during the incident but prior to seeing defendant in court, singled out as the accused, Ms. Bare would not have paid much attention to him.

Joseph Gelinski was having a drink in the bar when the bartender said that there was a hold-up and tried to quiet people down. He got a good look at the defendant and recognized him even though he did not have a beard and haircut on the night in question.

Gerald Werth testified that he got a good look at the man with the gun on the night in question. Werth identified defendant in court, noting that he had grown a beard since the incident.

Robert McCormick, although present, could not recall what had occurred on the night in question.

Herbert Payne, Assistant Superintendent, Records and Identification Bureau, Flint Police Department, identified a print found on a glass from the Jet Bar as being that of the defendant.

The defense called Margaret Kerperien, defendant's sister, who testified that defendant came into Marja's Bar, where she worked, about 11:00 p.m. on the night in question. Defendant sat with his sister, Charles and Shirley Prieur, and Pat Reamer. Margaret Kerperien also testified that defendant left Marja's at approximately 2:00 a.m. because he was sick but returned before he could have gone the three blocks to the Jet Bar and return. Shirley Prieur and Pat Reamer substantiated Margaret Kerperien's testimony. Pat Reamer also testified that defendant had a beard at the time.

Leroy Smith attested to the fact that he heard defendant asking to be let out of Marja's Bar around 2:00 a.m. on the night in question. And Helen Van Echouette, an employee of Marja's Bar, who was working at the time, testified that the defendant was in Marja's from 1:00 a.m. to after 2:00 a.m.

Defendant raises several issues on appeal which we will deal with in proper order.

I

Was there sufficient evidence to support a jury verdict of guilty of the crime of assault with intent to rob while armed, M.C.L.A. § 750.89; M.S.A. § 28.284?

While the record in this case does show that certain of the state's witnesses could not positively identify defendant as the robber, the record does show that several of the state's witnesses, including a fingerprint expert, established that defendant was the robber and was present at the Jet Bar and perpetrated the crime in question. There was sufficient evidence present, if believed by the jury, to sustain a verdict of guilty. People v. Boynton, 46 Mich.App. 748, 208 N.W.2d 523 (1973); People v. John Joseph Palmer, 392 Mich. 370, 220 N.W.2d 393 (1974).

II

Did the unresponsive remarks to proper questions indicating a prior criminal record constitute reversible error where defendant did not take the stand and counsel for defendant failed to object or move to strike?

Responding to a question from defense counsel, Robert Haggerty stated:

'Q. (By David Moore, defense counsel): How many times did you see Patrick Histed prior to this particular evening?

'A. I've known him and his sister and family, well, I know his sister for quite a few years. This goes back about 20 years when I worked as a supervisor out at Juvenile Home.'

During his cross-examination of Shirley Prieur, the prosecutor received the following answers:

'Q. (By Mr. Palus, assistant prosecutor): You've known the defendant for about three years?

'A. Yes.

'Q. Did you drink with him often?

'A. Well, couldn't have been too often; he just got out of Jackson.'

The reason defense counsel probably did not object to Haggerty's response was because defense counsel had asked the questions. As for Shirley Prieur's answers, they were not responsive to the questions and were not followed up by the prosecutor. Defense counsel probably remained silent so as not to emphasize such comments for the jury. In the case of Detroit v. O'Connell, 19 Mich.App. 538, 172 N.W.2d 875 (1969), wherein the Court cited People v. Todaro, 253 Mich. 367, 235 N.W. 185 (1931), it was ruled that an irresponsive answer to a proper question is not usually error. We further rule that even if the admission of the evidence was error, it was not prejudicial, for it is plausible that the defense counsel let the error pass without objection because of trial strategy. See People v. Gardner, 37 Mich.App. 520, 195 N.W.2d 62 (1972). We rule that it was not reversible error.

III

Was it proper cross-examination by the prosecutor to question witnesses as to their conduct which may have been inconsistent with what would have been probable had their statements on direct examination been true?

This issue was considered and properly disposed of in People v. McClow, 40 Mich.App. 185, 198 N.W.2d 707 (1972). Therein, defendant argued that the trial court had erred in allowing the prosecution to cross-examine an alibi witness concerning that witness's failure to come forward with the alibi at any time prior to trial. The Court held at 40 Mich.App. 193, 198 N.W.2d 711--712:

'(I)t was not improper cross-examination to interrogate the witness as to the conduct on his part at variance and inconsistent with what would be natural or probable if his statements on his direct examination were true. The credibility of a witness may be attacked by showing that he failed to speak or act when it would have been natural to do so if the facts were in accordance with his testimony.' (Citation omitted.)

We find no error present.

IV

Did prejudicial error occur where a res gestae witness was not...