People v. Kyles

• Decision Date: 28 April 1972
• Docket Number: No. 1,Docket No. 11991,1
• Citation: 40 Mich.App. 357,198 N.W.2d 732
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ollie Louis KYLES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 732

198 N.W.2d 732

40 Mich.App. 357

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ollie Louis KYLES, Defendant-Appellant.

Docket No. 11991.

Court of Appeals of Michigan, Division No. 1.

April 28, 1972.

Released for Publication July 10, 1972.

Leave to Appeal Denied Aug. 1, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and QUINN, JJ.

HOLBROOK, Judge.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305.

Police officers testified that while on patrol they received a radio dispatch to proceed to a television repair shop where an alarm was sounding. They observed a vehicle with three persons in the front seat near the repair shop. When they turned to go after this automobile, it made an eluding action, headed over a gas station lot, over a cement abutment, across an alley, and smashed into a cyclone fence. Three persons jumped out of the automobile and one got away. The other two were apprehended as they tried to go over the cyclone fence. One of the suspects was identified as the defendant. Four portable televisions and a hi-fi set were found in the abandoned vehicle. They had been taken from the television repair shop where a front window had been broken.

Defendant denied any implication in the crime. He testified that he asked the driver if he had just pulled a B & E and when he said yes, he asked to be let out of the automobile. As he was getting out, the police arrived and the driver speeded up and there was an accident. He said he got out of the vehicle, went to the fence, and was laying on the fence when the officer said, 'Halt,' and he was arrested.

On appeal, defendant asserts 3 issues.

I.

Was the trial court's comment that various witnesses 'can't all be telling the truth' prejudicial, and grounds for reversal notwithstanding defense counsel's failure to object?

The following jury instruction forms the basis for defendant's allegation of error:

'Now, members of the jury, you have heard the testimony on the part of the people and you have heard the testimony of the two defendants. Obviously, members of the jury, they can't all be telling the truth, and it is your job, your task, to determine where the truth lies.'

Defendant urges that there were only insignificant discrepencies in the testimony presented such as whether defendant was trying to climb over the cyclone fence when apprehended. Due to a lack of contradictory evidence, the judge's comment carried great weight with the jury and was prejudicial and should be grounds for reversal.

The people assert that the court did not invade the province of the jury by stating that someone was not telling the truth, and it was their task to determine where the truth lies.

Evidence of flight is not insignificant. It is admissible, relevant, material and can lead to an inference of guilt. People v. Cammarata, 257 Mich. 60, 66, 240 N.W. 14 (1932); People v. Bunker, 22 Mich.App. 396, 410, 177 N.W.2d 644 (1970); People v. Ballard, 25 Mich.App. 197, 181 N.W.2d 9 (1970).

Defendant testified that he did not try to flee, but was laying on the fence when the officer said 'Halt.' The police witnesses testified that the two other persons in the vehicle leaped out of the vehicle and tried to go over the fence, at which time they were apprehended.

Obviously, as the court properly observed, 'They can't all be telling the truth,' and it was for the jury to determine where the truth lies.

The jury was not misled. The court gave a proper precautionary instruction to the jury on the respective roles of the judge and the jury in a trial:

'It is your exclusive province to determine what the facts are, what actually happened, who committed this crime; and I don't want you to assume, members of the jury, from anything that I may have inadvertently said or done, that I am trying to invade your province of determining the facts in this case or that I have any opinion as to the guilt or innocence of these defendants or any fact in this case.'

It is true that an appellate court will consider manifest and serious errors with or without trial objection. Defendant does not demonstrate such error, nor is reversible prejudice shown on the basis of the issue raised. M.C.L.A. § 769.26; M.S.A § 28.1096; GCR 1963, 529.1; People v. Burnette, 19 Mich.App. 336, 172 N.W.2d 453 (1969); People v. White, 25 Mich.App. 176, 180, 181 N.W.2d 56 (1970).

II.

Was the prosecuting attorney's statement, that defendant as an ex-convict had a 'higher duty' than ordinary people, prejudicial and a ground for reversal despite the fact that defendant's counsel made no objection thereto?

Defendant argues that the prosecutor's erroneous statement that defendant, on account of his prior convictions, had a higher duty to stay clear of trouble, misled the jury, and is ground for reversal.

The people assert that the statement did not amount to an opinion of defendant's guilt; it was an attempt to evaluate whether defendant's story of no participation was true or not.

Defendant's assertion of error is founded upon the following transcript quotations:

'We are now asked to believe this was an unfortunate circumstance reasonable people would believe. I submit to you that these people have a higher duty than reasonable people. These people (defendant and his codefendant) each admitted to three breaking-and-entering charges apiece. * * * But here these people are out there with a record. That is the time to go. If you sense even a hint of trouble, that is the time to bail out. You don't wait until the fact occurs and then sit in the car and watch for somebody else to go and see what would happen.' (Emphasis supplied.)

'Each of these gentlemen have three convictions for these same offenses, breaking and entering, which they admitted to.'

'I find it hard to believe that anybody would passively sit by and let a third party go ahead and commit a crime Which they knew, because of their past police experience, they would be involved in, were they caught or not, that they would stay anywhere near the area where this crime occurred if they did not knowingly and willfully participate in its commission.' (Emphasis supplied.)

Defendant made no trial objection to the prosecutor's remarks, there was no motion for a mistrial, nor did he request a specific instruction from the trial judge in relation thereto.

It is obvious that the prosecutor was attacking defendant's credibility; the believability of his defense of no criminal participation. The prosecutor is entitled to comment on the evidence and draw reasonable inferences therefrom. People v. Morlock, 233 Mich. 284, 206 N.W. 538 (1925); People v. Russell, 27 Mich.App. 654, 183 N.W.2d 845 (1970); People v. Joshua, 32 Mich.App. 581, 586, 189 N.W.2d 105 (1971); People v. Martin, 37 Mich.App. 621, 194 N.W.2d 909 (1972).

Defendant's interpretation of the allegedly offensive remarks, even if allowed, would still be only the prosecutor's comment on the evidence as it related to...