People v. Ovegian

• Decision Date: 06 May 1981
• Docket Number: Docket No. 47511
• Citation: 106 Mich.App. 279,307 N.W.2d 472
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David OVEGIAN, Defendant-Appellant. 106 Mich.App. 279, 307 N.W.2d 472
• Court: Court of Appeal of Michigan — District of US

Page 472

307 N.W.2d 472

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David OVEGIAN, Defendant-Appellant.

Docket No. 47511.

106 Mich.App. 279, 307 N.W.2d 472

Court of Appeals of Michigan.

May 6, 1981.

Released for Publication July 13, 1981.

[106 MICHAPP 281] Richard J. Amberg, Jr., West Bloomfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., Thomas S. Richards, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and BASHARA and MacKENZIE, JJ.

PER CURIAM.

Defendant was convicted by a jury of conspiracy to commit first-degree murder, M.C.L. § 750.157a; M.S.A. § 28.354(1). He was acquitted of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548. Testimony at trial established that defendant was hired by Linda Hamilton to cause the death of her husband.

On appeal, defendant contends that he was denied a fair trial as a result of the prosecutor's closing argument. He asserts that the prosecutor improperly commented on defendant's failure to call alibi witnesses.

It is well established that where the defendant presents evidence of an alibi, the prosecutor may comment on the weakness of the alibi defense by pointing out the lack of corroboration testimony to the jury during closing argument. People v. Hunter, 218 Mich. 525, 528, 188 N.W. 346 (1922); People v. Fuller, 44 Mich.App. 297, 299, 205 N.W.2d 287 (1973), aff'd 395 Mich. 451, 236 N.W.2d 58 (1975). Where defendant produces no testimony in support of the alibi, the prosecutor's comment is improper. People v. Shannon, 88 Mich.App. 138, 145, 276 N.W.2d 546 (1979).

[106 MICHAPP 282] In the case at bar, defendant testified that he was with relatives and friends during the shooting. Consequently, the prosecutor's comments were not improper. Hunter, supra.

Defendant further cites M.C.L. § 768.20(2); M.S.A. § 28.1043(2) in support of this allegation of prosecutorial impropriety. The statute requires the prosecutor to file a list of alibi rebuttal witnesses and does not concern the issue raised. See People v. Alexander, 82 Mich.App. 621, 627, 267 N.W.2d 466 (1978).

Next, defendant alleges that the trial court erred in denying his motion in limine to exclude evidence of his recent conviction as an aider and abettor in the murder of a key prosecution witness. The court ruled that the prosecutor could impeach defendant's credibility by asking him if he had been convicted of a felony, without specificity as to its nature or victim.

There are several cases from this Court holding that the use of evidence of unspecified felony for impeachment constitutes error. Cf. People v. Jones, 92 Mich.App. 100, 109-114, 284 N.W.2d 501 (1979); People v. Garth, 93 Mich.App. 308, 315-320, 287 N.W.2d 216 (1979); People v. Vincent, 94 Mich.App. 626, 633-638, 288 N.W.2d 670 (1980); People v. Dixon, 99 Mich.App. 847, 849, 298 N.W.2d 647 (1980).

However, there is another line of cases which approve of the rule as being a fair compromise under the circumstances of the case. See People v. Moseley, 94 Mich.App. 461, 465, 290 N.W.2d 39 (1979); People v. Hollis, 96 Mich.App. 333, 340, 292 N.W.2d 538 (1980).

In People v. Van Dorsten, 96 Mich.App. 356, 359, 292 N.W.2d 134 (1979), this Court noted that the trial court recognized and properly exercised its [106 MICHAPP 283] discretion in allowing impeachment by use of evidence of unnamed felonies. Subsequently, the Supreme Court reversed, holding:

"(W)e reverse the Court of Appeals judgment, and remand the case to the Calhoun Circuit Court for a new trial. It is improper to impeach a defendant by telling the jury only of the existence of unnamed prior felony convictions, without providing the names of the offenses. It is the nature, rather than the fact, of a prior felony conviction which the jury is to use in its evaluation of credibility." 409 Mich. 942, 298 N.W.2d 421 (1980).

The circumstances herein present a strong case in support of the trial court's ruling. The prosecutor was allowed to introduce evidence of defendant's complicity in the other murder in its case in chief due to the fact the defendant had suppressed evidence. People v. Salsbury, 134 Mich. 537, 569-570, 96 N.W. 936 (1903). Therefore, the impeachment evidence was merely cumulative. In addition, we note that defense counsel was free to elicit testimony from the defendant establishing the nature of the felony. He apparently chose not to proceed in that manner for tactical reasons. See Garth, supra (dissent of Brennan, J.), 93 Mich.App. 320, 287 N.W.2d 216.

Nonetheless, we feel constrained to abide by the Court's decision in Van Dorsten in holding that the ruling was erroneous. However, we find the evidence of defendant's guilt so overwhelming that the error was harmless. It is difficult to imagine that any of the jurors would have voted to acquit, absent the error. Moseley, supra; People v. Makidon, 84 Mich.App. 287, 269 N.W.2d 568 (1978), modified on other grounds 406 Mich. 953, 277 N.W.2d 644 (1979).

Defendant also requests reversal on the ground that he was denied a speedy trial, U.S.Const., Am. [106 MICHAPP 284] VI, Const.1963, art. 1, § 20. A balancing of four factors is required in reviewing this claim: the length of the delay; the reason for the delay; the defendant's assertion of his right; and prejudice to the defendant. People v. Grimmett, 388 Mich. 590, 606, 202 N.W.2d 278 (1972).

Approximately 29 months passed before defendant was brought to trial. However, careful review of the record reveals that nine months of the delay were caused by defendant's motion to remand for a new preliminary examination. This delay is attributed to defendant because, after the long delay, he waived the examination, leading us to conclude that the motion was a stalling tactic. A further nine months of delay was also the cause of dilatory motion tactics of defendant's second set of attorneys. Much of the delay was the result of the death of the prosecution witness whose murder defendant aided and abetted. He can hardly claim the prosecutor should bear the consequences of that delay.

Defendant asserted his right to a speedy trial three times. We note that defendant's requests for a speedy trial appear insincere in view of the other motions filed which prevented the trial from commencing. See People v. Collins, 388 Mich. 680, 693, 202 N.W.2d 769 (1972).

We find no substantial prejudice resulting to the defense or to defendant personally. Pretrial incarceration is always "prejudicial" in that the accused is denied many of his civil liberties. Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Defendant asserts that his pretrial incarceration was excessively oppressive. However, this allegation has not been supported in the record.

Of the two types of prejudice the defendant may [106 MICHAPP 285] experience while awaiting trial, prejudice to his defense is considered the more crucial. People v. Chism, 390 Mich. 104, 114, 211 N.W.2d 193 (1973). This defendant's case was not prejudiced by the delay. The alibi defense to the murder count was evidently believed by the jury as he was acquitted of the charge. At any rate, his claim that the delay prevented him from locating alibi witnesses, which included his mother, wife, stepfather and sister, is incredulous. We find that the prosecutor has...