People v. Pacely

• Decision Date: 14 January 1974
• Docket Number: 13435,Docket Nos. 13434,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph PACELY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 561

214 N.W.2d 561

51 Mich.App. 67

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph PACELY, Defendant-Appellant.

Docket Nos. 13434, 13435.

Court of Appeals of Michigan, Division No. 2.

Jan. 14, 1974.

Released for Publication Feb. 11, 1974.

Rehearing Denied March 13, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and BRONSON and CARLAND,* JJ.

McGREGOR, Presiding Judge.

Defendant was charged with armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, and convicted by a jury of both. He was sentenced to concurrent terms of 25 to 40 years in prison and now appeals both convictions.

True to form in cases of this sort, the jury was presented with two hopelessly inconsistent accounts of the events giving rise to the prosecution of the defendant. We begin with the complaining witness's version.

On the evening of January 3, 1971, the complainant stopped at a rest area on the I--94 expressway near Ann Arbor to use the restroom. After complainant had returned to his automobile, the defendant allegedly approached the car, opened the door on the passenger's side, and asked for assistance in starting his automobile. The complainant told defendant that he would not give him a push, but would give him a ride to a service station. The defendant got in the front seat of complainant's car, and a woman, who complainant thought was defendant's wife, entered the back seat. As the car exited from I--94, the defendant fired a shot into the floorboard of the car and complainant observed a small pistol in defendant's hand. The defendant told complainant to give his wallet to the defendant's female companion, which complainant did. Complainant was then told to drive to Ypsilanti, where two acquaintances of defendant joined the trio and defendant took over the driving, while the young woman kept the gun trained on the complainant. The group proceeded to Inkster, where the defendant stopped at a house and picked up some 'dope or pills or something', after which complainant was taken a little further, told to get out of the car, and handcuffed to an abandoned automobile. After a few minutes, complainant was able to free himself and contact the police.

The defendant's version of the events which transpired on that cold, snowy January evening is more interesting, though perhaps less credible, than that offered by the complainant.

According to defendant, he and his female companion, a prostitute, had gone to the rest area for the purpose of soliciting truck drivers. As defendant entered the restroom at this area, he encountered complainant engaged in homosexual activity with some unidentified third party. The complainant then allegedly requested the defendant to find him a girl to participate in an orgy. Defendant told complainant that his companion would not do that, but that he could find a girl in Inkster who would. Defendant testified that he left the rest area in his own car and drove toward Inkster, followed by the complainant in his car. At this time, defendant decided to steal complainant's car and, when they arrived in Inkster, defendant persuaded the complainant to allow him to use complainant's car to locate the other girl. Defendant claimed that complainant gave him the allegedly stolen money to buy gas.

The defendant was apprehended in complainant's car; the license plates had been changed and a spent .25-caliber shell and misfired cartridge of the same caliber were found in the automobile.

In his primary and supplemental briefs on appeal, defendant posits six issues for our consideration. Having carefully examined all six, we find that only three are of sufficient merit to warrant discussion here.

The first issue is whether the prosecuting attorney's closing argument was sufficiently prejudicial to deny the defendant a fair and impartial trial. We conclude that it was not.

Initially, it should be noted that defense counsel objected to none of the remarks made by the prosecutor in his closing argument. The absence of an objection in the trial court precludes appellate review, unless this Court's failure to consider the issue would result in a miscarriage of justice. The basic standard employed in determining whether the remarks resulted in a miscarriage of justice is whether the allegedly prejudicial effect of the remarks could have been rectified by a curative instruction. If so, the failure to object is fatal to the claim on appeal. People v. Bennett, 46 Mich.App. 598, 208 N.W.2d 624 (1973).

We deem it unnecessary to quote at length the comments upon which defendant founds his claim of error. Suffice it to say that the prosecutor forcefully argued that the defendant was lying and characterized his story concerning the complainant's homosexual activity at the rest area as 'obnoxious', 'terrible', and 'fantastic'. Although such remarks, standing alone, would appear improper, our review of the prosecutor's entire argument discloses that the comments were based on his careful analysis of the evidence submitted to the jury.

Responding to an argument similar to defendant's, this Court, in People v. Cowell, 44 Mich.App. 623, 628--629, 205 N.W.2d 600, 603 (1973), recently stated:

'The defendant takes particular exception to the prosecutor's argument that he, the defendant, was lying and to the prosecutor's argument that he treated the child as a thing, a super ball, or a rag doll. The record shows that the prosecutor did indeed argue quite vigorously that the defendant was lying, and, based on the evidence, he suggested several excellent reasons for so concluding. The record also shows that the prosecutor did argue that the defendant treated the child as a thing, a super ball, or a rag doll. Under the prosecutor's theory of the case this was exactly what he had to prove. The remarks were both related to and supported by the evidence. Of course, a prosecutor must avoid inflaming the prejudices of a jury, but there is no requirement that he phrase his argument in the blandest of all possible terms. The prosecutor is, after all, an advocate and he has not only the right but the duty to...