People v. Montevecchio, Docket No. 7110

• Decision Date: 30 March 1971
• Docket Number: Docket No. 7110,No. 2,2
• Citation: 32 Mich.App. 163,188 N.W.2d 186
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Caesar MONTEVECCHIO, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 186

188 N.W.2d 186

32 Mich.App. 163

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Caesar MONTEVECCHIO, Defendant-Appellant.

Docket No. 7110.

Court of Appeals of Michigan, Division No. 2.

March 30, 1971.

Released for Publication July 8, 1971.

Thomas R. McCombs, McAra & Palmer, Flint, for defendant-appellant.

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

Before R. B. BURNS, J. H. GILLIS and T. M. BURNS, JJ.

PER CURIAM.

Defendant Caesar Montevecchio, Loren Jolly, and Joseph Giacalone were charged with armed robbery. M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797). Because of certain statements made by Loren Jolly to the police, motion for separate trial for the defendant herein and Joseph Giacalone was granted. Defendant and Giacalone were both convicted as charged, and defendant was sentenced to serve not less than 50 years nor more than 70 years in the state prison.

Defendant contends that the following remarks made by the prosecutor were inflammatory and prejudiced defendant's right to a fair trial:

'If a man can come into our city, pull a gun on two of our citizens, rob them of between $30,000 and $40,000, register in this town under a false name, have his room occupied through the night of the 14th, and be used that night, and paid for for that night, make--have telephone calls placed to his home twice on the day of the robbery from here, not from Erie, but from here, and be the man they picked out in the back of this crowded courtroom--if he can do all those things and get away with it, because a couple of his booze-joint friends say he wasn't there, then let's close up shop and go home; because, we aren't safe anymore.

'Because, any man who can't get a couple of booze-joint friends to come in and testify for him isn't worth his salt, even as a criminal.

'And, these men were pretty good criminals, they weren't amateurs. They were pros. They knew what they were doing.

'Most amateurs can get a couple of friends to put in a good word for them, and I assure you that a pro can, with stories that you couldn't checks out for love nor money.'

In People v. Ignofo (1946), 315 Mich. 626, 24 N.W.2d 514, the prosecutor stated that defendant was guilty and that, while the defendant had previously evaded detection, his deeds had now caught up with him. The Supreme Court in reversing defendant's conviction stated at page 636, 24 N.W.2d at page 518:

'In the case at bar the statement of the prosecuting attorney was not an expression of his opinion. It was a statement of fact that should only have been made by a witness. While no objection was made to such statement at the time it was made or specific charge requested of the court, yet in our opinion such statement could not be eradicated from the minds of the jury and is reversible error.'

Similarly, in People v. Slater (1970), 21 Mich.App. 561, 175 N.W.2d 786, the prosecutor stated that he knew defendant was the one who killed the victim. This court held that while it is proper for the prosecutor to argue the testimony, he should not be permitted to state what he personally thinks or believes of defendant's guilt.

In the instant case the remarks of the prosecutor characterized the defendant as a professional criminal whose friends perjured themselves in testifying as to defendant's alibi. These remarks were made as statements of fact and would certainly lead the jury to...