People v. Pawelczak

• Decision Date: 06 July 1983
• Docket Number: Docket No. 56618
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Henry PAWELCZAK, Defendant-Appellant. 125 Mich.App. 231, 336 N.W.2d 453
• Court: Court of Appeal of Michigan — District of US

Page 453

336 N.W.2d 453

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Henry PAWELCZAK, Defendant-Appellant.

Docket No. 56618.

125 Mich.App. 231, 336 N.W.2d 453

Court of Appeals of Michigan.

Submitted Jan. 4, 1983.

Decided March 23, 1983.

Released for Publication July 6, 1983.

[125 MICHAPP 233] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, [125 MICHAPP 234] Pros. Atty., Edward Reilly Wilson, Deputy Chief, Appellate Asst. Pros. Atty. Civ. and Appeals, and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.

Stephen J. Remski, Detroit, for defendant-appellant.

Before MacKENZIE, P.J., and R.B. BURNS and QUINNELL ^*, JJ.

PER CURIAM.

After a jury trial, defendant was convicted of receiving and concealing stolen property of a value in excess of $100, M.C.L. Sec. 750.535; M.S.A. Sec. 28.803. Defendant was sentenced to two years of probation and appeals by right.

I

Defendant argues that testimony concerning statements transmitted over police radios was erroneously admitted. In People v. Eady, 409 Mich. 356, 361-362, 294 N.W.2d 202 (1980), the Court held that there was no "radio run" exception to the hearsay rule. The Court noted, however, that in some instances evidence of statements transmitted over the radio may be properly admitted for purposes other than to show the truth of the matter asserted, such as to show the listeners' knowledge or motives if relevant to an issue in the case. The Court concluded that use of such evidence to show the truth of the matter asserted was not harmless error in the case before it because it was used to corroborate the testimony of the complainant and to refute the testimony of the defendant on a crucial issue in the case.

Here, testimony showed that an automobile had [125 MICHAPP 235] been reported stolen and that the description and license number of the automobile were broadcast over the police radio. Two officers on patrol in a marked police car observed an automobile matching the broadcast description and pursued. The occupant of the stolen automobile abandoned it, and one officer continued the pursuit on foot while the other broadcast a description of the occupant over the radio. The pursuing officer lost sight of the man who had escaped from the stolen automobile during the chase, but officers from another patrol car arrested defendant because he was on foot in the same neighborhood and matched the broadcast description. Both officers from the first patrol car positively identified defendant as the man they had seen in the stolen automobile. Defendant, however, claimed that he was an innocent bystander and that his arrest was a case of mistaken identity.

No objection was made to the admission of the testimony at issue here. Under such circumstances, this Court will not review a claim that evidence was erroneously admitted absent manifest injustice. See, for example, People v. Johnson, 116 Mich.App. 452, 459, 323 N.W.2d 439 (1982). The evidence at issue here was offered to show the motives of the police officers for pursuing the stolen vehicle and for arresting defendant rather than to prove the truth of the matter asserted. The circumstances of the arrest were relevant to prove defendant's identity as the perpetrator of the crime. In another case, defendant might point to authorities such as People v. Therrien, 97 Mich.App. 633, 296 N.W.2d 8 (1979), and argue that, as testimony of the officers' prior description of defendant tended to impermissibly bolster their identification testimony, the probative value of such testimony was outweighed by its prejudicial effect. [125 MICHAPP 236] Here, however, defendant sought to support his defense of mistaken identity by relying on alleged discrepancies in accounts of the broadcast description and by attempting to show that the broadcast description did not match him. Under such circumstances, the failure to object to the admission of this testimony appears to have been a conscious choice of reasonable trial strategy. Admission of this testimony presents no manifest injustice.

Defendant also argues that an insufficient foundation was laid for the testimony of a police officer that a key found in the stolen automobile was a master key which would fit many different types of Ford vehicles. Again no objection was made to the admission of the testimony which defendant's argument concerns. The officer testified that he had seen such keys before in the course of his duties. A person qualified as an expert by knowledge, skill, experience, training, or education may testify as to his specialized knowledge in the form of an opinion or otherwise. MRE 702. The officer's testimony sufficiently established him as an expert so that his testimony concerning the master key presents no manifest injustice.

II

Defendant contends that he was deprived of a fair trial by certain questions and comments by the trial judge. A trial judge has discretion to question witnesses to shed light on something unclear in the testimony but must not allow his views on disputed issues of fact to become apparent to the jury. People v. Young, 364 Mich. 554, 558, 111 N.W.2d 870 (1961); People v. Jackson, 97 Mich.App. 660, 662-663, 296 N.W.2d 135 (1980). Defendant first points to exchanges in which the trial judge questioned a defense witness about the [125 MICHAPP 237] date on which he spent the evening with defendant. There was nothing improper about such questioning under the circumstances presented here. The date to which the witness originally testified would have rendered his testimony useless to defendant because it was the day after defendant's arrest; the trial judge's questioning resolved the confusion of the witness and could only have helped defendant.

Defendant also complains of the comment by the trial judge which appears during the following exchange on direct examination of defendant:

"Q. The officers carrying you to the precinct never recited any rights to you?

"A. No.

"Q. Did they say anything to you on the way in the car?

"A. No, just, you know, you're in trouble and just keep on playing it as a joke, kind of, you know.

"Q. And did you say anything to them?

"A. Uh, no. I just kept on saying you've got the wrong guy.

"Q. So it's your testimony then that the first time that your rights were either read to you--

"[Assistant prosecutor]: (interposing) I'm going to object. What is the point here?

"THE COURT: What is a point?

"[Assistant prosecutor]: We're not offering any confession.

"THE COURT: Yes, and on the way down to the station they never said anything to him except you're in trouble. Kind of like a rock and roll record. You know, you're in trouble. He says, you've got the wrong guy. Two verses repeated over and over again. They play to the tune of, uh--counsel, they haven't said anything and got no statement."

A trial judge's comments are reversibly erroneous[125 MICHAPP 238] if they are of such a nature as to unduly influence the jury and thereby deprive defendant of his right to a fair trial. People v. Rogers, 60 Mich.App. 652, 657, 233 N.W.2d 8 (1975). The comment at issue here was perhaps unwise but was by no means prejudicial to defendant. It precisely reflects defendant's own testimony as to the repetitious nature of what occurred. It applies equally to defendant's conduct and that of the arresting officers. We cannot see how it carries an implication that defendant's defense lacked merit. It could not have unduly influenced the jury or deprived defendant of a fair trial.

III

Defendant also contends that certain arguments made by the prosecutor deprived him of a fair trial. No objection was made to the arguments at issue and, under such circumstances, appellate review is foreclosed unless our failure to consider the issue would result in a miscarriage of justice. See, for example, People v. Jansson, 116 Mich.App. 674, 692-693, 323 N.W.2d 508 (1982). Defendant points to argument in which his defense of mistaken identification was referred to in terms such as "fanciful", "fantastic", and "a kill of good". However, a prosecutor is not required to state his arguments in the blandest possible terms and may argue that a defendant's story is unworthy of belief as long as such argument is based on the evidence rather than on matters not of record or the prestige of the prosecutor's office. People v. Cowell, 44 Mich.App. 623, 628-629, 205 N.W.2d 600 (1973); People v. Couch, 49 Mich.App. 69, 72-73, 211 N.W.2d 250 (1973). The prosecutor's argument here was based on the evidence and was therefore not improper.

[125 MICHAPP 239] Defendant complains of the prosecutor's argument that the master key found in the stolen automobile was "the type of key that only a dealer or a thief would have in his possession". This argument was a rational inference from the testimony concerning the nature of the key. Moreover, it is impossible to see how this argument could have harmed defendant since the key was not found in defendant's possession but rather in the automobile which all the evidence at trial showed to be stolen.

Defendant also complains of the prosecutor's statement in closing argument that he would think that at least a screwdriver would be necessary to change a rotor in the engine of defendant's van. Defendant was arrested at 3 o'clock on a February morning. Defendant explained that, after an evening of drinking with friends, he had decided to replace the rotor in the engine of his van, which was parked on a nearby street. Defendant had no tools with him at the time of his arrest but explained that no tools were necessary to change a rotor.

Arguably there was no evidence in the record to support an inference that any sort of tool was necessary to change the van's rotor. However, in view of the absence of objection, the lack of emphasis given this point by the prosecutor, and the general implausibility of defendant's explanation, we cannot say that a miscarriage of justice will...