People v. Pena, 76

• Citation: 3 Mich.App. 26,141 N.W.2d 677
• Decision Date: 26 April 1966
• Docket Number: No. 3,No. 76,76,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ramon PENA, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan (US)

Page 677

141 N.W.2d 677

3 Mich.App. 26

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ramon PENA, Defendant-Appellant.

Cal. No. 76.

Court of Appeals of Michigan, Division No. 3.

April 26, 1966.

Larry C. Carl, Saginaw, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert B. Currie, Pros. Atty., Saginaw County, Saginaw, for appellee.

Before LESINSKI, C.J., and QUINN and McGREGOR, JJ.

McGREGOR, Judge.

Defendant Pena appeals his conviction by a circuit court jury of the crime of selling narcotic drugs as a non-licensee. He was subsequently sentenced to prison for a term of 20 to 25 years.

The defendant contends that he was deprived of a fair trial because the assistant prosecuting attorney sent the following letter to each of the defendant's three alibi witnesses:

'Dear Madam:

In the interests of justice I am quoting Michigan Statutes Annotated 28.664 (Comp.Laws 1948, § 750.422), which provides as follows:

'Any person who, being lawfully required to depose truth in any proceeding in a court of justice, shall commit perjury shall be guilty of a felony, punishable, if such perjury was committed on the trial of an indictment for a capital crime, by imprisonment in the state prison for life, or any term of years, and if committed in any other case, by imprisonment in the state prison for not more than fifteen (15) years.'

Very truly yours,

G. E. Thick

Assistant Prosecuting Attorney'

This Court declines to hold that the sending of the above letter to the defendant's alibi witnesses unfairly prejudiced the trial because the letter itself contains no threats and the defendant has not shown any other evidence of a possible scheme to intimidate the defendant's witnesses.

Secondly, the defendant contends that there was prejudicial error in certain remarks the assistant prosecuting attorney made to the jury. In his opening remarks, the assistant prosecutor stated that the police had information that the defendant Pena was in the narcotics business even before the transaction for which the defendant was herein tried. In his closing argument to the jury, the assistant prosecutor lodged an acrimonious imputation of bias on the part of the defendant's mother, who testified as an alibi witness, by comparing her to the mother of Lee Harvey Oswald, who publicly has maintained her son's innocence in spite of all the evidence to the contrary. This Court will not consider any allegations of error in these two remarks since defense counsel failed to object to them at trial. People v. Zesk (1944), 309 Mich. 129, 14 N.W.2d 808. People v. Goldberg (1929), 248 Mich. 553, 227 N.W. 708. Also, during his final argument the assistant prosecutor posed the rhetorical question to the jury that he wondered how many other sales of narcotics the defendant had made during the 41 days between the day the alleged offense occurred and the date of the defendant's arrest. Since the defense counsel's objection to this remark was sustained by the trial judge, the error was extinguished.

Thirdly, the defendant contends that it was error for the prosecution to call the defendant's sister as a res gestae witness at the end of the defendant's case and then to impeach her with testimony of a prior inconsistent statement. Before trial, defendant's counsel had notified the prosecution that the defendant's sister was claimed as an alibi witness. Since the counsel for the defendant chose not to call her as a witness at trial, after the defendant rested, the...