People v. Peery

• Decision Date: 03 December 1982
• Docket Number: Docket No. 77-3497
• Citation: 119 Mich.App. 207,326 N.W.2d 451
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bryan Ellis PEERY, Defendant-Appellant. 119 Mich.App. 207, 326 N.W.2d 451
• Court: Court of Appeal of Michigan — District of US

Page 451

326 N.W.2d 451

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bryan Ellis PEERY, Defendant-Appellant.

Docket No. 77-3497.

119 Mich.App. 207, 326 N.W.2d 451

Court of Appeals of Michigan.

Submitted March 2, 1982.

Decided Sept. 7, 1982.

Released for Publication Dec. 3, 1982.

[119 MICHAPP 210] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Robert J. Sheiko, Asst. Pros. Atty., for the People.

Bryan Ellis Peery, in pro. per.

Before MAHER, P.J., and BEASLEY and MARUTIAK ^*, JJ.

MARUTIAK, Judge.

Defendant appeals of right his jury conviction on a charge of armed robbery. This matter appeared once before on a motion for peremptory reversal and was remanded to the trial court for an evidentiary hearing and the opportunity to file a motion for a new trial based on any allegations of error. The essence of the prosecutor's case was that the defendant, after drinking with the complainant at a bar, struck the complainant on the back of the head, stabbed him three times, robbed him, then stabbed him twice more and then left.

Defendant contends he was denied a fair trial by the prosecutor's failure to endorse and produce an alleged res gestae witness in the absence of objection by defense counsel. This matter was considered by the trial court on defendant's motion for a new trial and the trial court found that the testimony of the unendorsed and unproduced witness, King, would have been merely cumulative of other [119 MICHAPP 211] testimony which described complainant's condition after the brutal attack and consequently denied defendant's claim of error. People v. Willie Pearson, 404 Mich. 698, 273 N.W.2d 856 (1979), places the burden upon the prosecution of establishing that its failure to produce a res gestae witness would not adversely affect the defendant's right to a fair trial and that this burden could be satisfied by establishing (1) that the missing testimony would have been of no assistance to the defendant; (2) that it merely constituted cumulative evidence; (3) that its absence constitutes harmless error; or (4) that the witness could not have been produced at trial. This burden was met and we find no reason to overturn the trial court's determination that it was not error for the prosecutor to fail to produce witness King.

Defendant next contends reversible error occurred when the trial court admitted a certain boot into evidence. There was no timely objection made at trial by the defendant. Since defense counsel didn't object to the admission of the bloodstained boot into evidence, this Court is precluded from reviewing this issue absent a showing of manifest injustice. People v. Alexander, 72 Mich.App. 91, 249 N.W.2d 307 (1976). The decision to admit arguably prejudicial evidence is committed to the trial court's discretion. People v. Kramer, 103 Mich.App 747, 303 N.W.2d 880 (1981). The judge's decision should not be reversed unless it is clearly erroneous and indicates an abuse of discretion. People v. Hughie Lewis, 97 Mich.App. 359, 296 N.W.2d 22 (1980). In the instant case, the bloodstained boot tended to show that defendant was the man who attacked the victim inasmuch as there was substantial proof that the victim bled profusely and, since the victim identified the defendant[119 MICHAPP 212] as the assailant, the boot was probative since it corroborated the victim's identification of the defendant as the assailant. It does not appear that the trial court abused its discretion in allowing the bloodstained item into evidence. Rather, the bloodstained boot was not more prejudicial than probative and, therefore, its admission into evidence was not error. People v. Thomas Ross, 73 Mich.App. 287, 251 N.W.2d 268 (1977). This claim is without merit.

Defendant also raises as error certain prosecutorial comments in closing argument. Absent defense counsel objection or request for curative instruction, the prosecutor argued to the jury, "All of us are the people of the State of Michigan * * * and all of us have a right to be protected and secure in our person and in our property and to the protection of the law". Thus he argued that the fact that the victim was unemployed ought not to be a determining factor in jury deliberations. The prosecutor further stated that, while defendant is entitled to a fair trial, justice is a two-way street and the people were entitled to a fair trial, also:

"Mr. Sanderson [victim] can obtain only one thing in this trial and the People can obtain only one thing, because I remind you that this is entitled in the Name of the People because it affects all of us and that is justice. It is all that can be obtained. We forget that there are two sides to the coin of justice. We are not here to look for anything but one thing, and that is the truth."

In the absence of objection by defense counsel, appellate review of allegedly prejudicial remarks by a prosecutor in closing arguments is precluded. The trial court is deprived of an opportunity to [119 MICHAPP 213] make a timely cautionary instruction and thereby eliminate any possible prejudice to the defendant. People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977). An exception to the preclusion rule exists where failure to consider the issue would result in a miscarriage of justice. Or, to rephrase, unless the prejudicial effect to defendant was so great that it could not have been cured by a timely cautionary instruction pursuant to defendant's objection, appellate review is precluded. People v. Tenbrink, 93 Mich.App. 326, 287 N.W.2d 223 (1979).

Defendant maintains that the prosecutor improperly stressed the stabbing of the victim in his closing argument and therefore the emotions of the jury were aroused to an issue unrelated to defendant's guilt or innocence. The prosecutor made a single arguably prejudicial remark on elements of the crime in issue in this case. In the absence of timely objection, this Court will not reverse defendant's conviction on this claim since a cautionary instruction would have removed any possible prejudice to the defendant.

It is also noticed that the jury was instructed by the court that the attorneys' arguments should not be regarded as evidence. The argument which the prosecutor used here that the defendant classifies as "civic duty" is very similar to the arguments used in People v. Hall, 396 Mich. 650, 242 N.W.2d 377 (1976); and People v. Edward Villarreal, 100 Mich.App. 379, 298 N.W.2d 738 (1980). They are dispositive of defendant's claims of error as to the alleged "civic duty" arguments made by the prosecutor. In the absence of objection allowing cautionary instruction to cure prejudice and in the presence of instruction that counsels' argument was not evidence, these remarks do not create reversible error.

[119 MICHAPP 214] Defendant claims the trial court erred when it failed to instruct the jury that armed robbery is a specific intent crime. Once again, no objections were made to the trial court's instructions and satisfaction was expressed. Robbery is a specific intent crime and a trial court's erroneous instruction regarding intent is a ground for reversal notwithstanding the fact that there was no request for instruction and no objections made. People v. Martin, 75 Mich.App. 6, 254 N.W.2d 628 (1977). However, a trial court is not required to use the phrase "specific intent" in an instruction to the jury. While it would be preferable for the trial judge to more fully explain the intent element of armed robbery, the issue on review is whether manifest injustice resulted from the instruction given and reversal is thus required. People v. Alexander, supra. The instructions, when reviewed as a whole, did not mislead the jury, were adequate and not inconsistent with substantial justice, notwithstanding the failure of the trial court to more specifically discuss specific intent. The trial court carefully explained the elements of the nature of armed robbery with clarity and precision. People v. Fry, 55 Mich.App. 18, 222 N.W.2d 14 (1974). Defendant's claim of error is rejected.

Defendant next claims denial of effective assistance of counsel, alleging the previously mentioned failures to object and, additionally, failure to adequately investigate and prepare for trial. An appropriate analysis under which a claim of ineffective assistance of counsel should be scrutinized is set forth in People v. Coyle, 104 Mich.App. 636, 639, 305 N.W.2d 275 (1981):

"In Michigan, the merit of claims of ineffective assistance of counsel is determined by applying a bifurcated test. People v Garcia, 398 Mich 250; 247 NW2d 547 [119 MICHAPP 215] (1976), reh den 399 Mich 1041 (1977). The first branch of the inquiry focuses on the Sixth Amendment right to counsel, for which the Supreme Court has endorsed the standard established in Beasley v. United States, 491 F2d 687, 696 (CA 6, 1974). People v. Garcia, supra 264 . To satisfy defendant's right to counsel, his lawyer 'must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interests, undeflected by conflicting considerations'. Id. Aside from reviewing the overall performance of counsel, an appellate court will also examine particular mistakes of counsel to safeguard defendant's right to a fair trial, which is the other branch of the inquiry. For this purpose, the Garcia Court adopted the standard developed in People v. Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969):

" 'However, even where assistance of counsel satisfies the constitutional requirements, defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance for acquittal.' Garcia, supra, 266 ."

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