People v. Pennington

• Decision Date: 04 May 1982
• Docket Number: Docket No. 50155
• Citation: 318 N.W.2d 542,113 Mich.App. 688
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Ray PENNINGTON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 542

318 N.W.2d 542

113 Mich.App. 688

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel Ray PENNINGTON, Defendant-Appellant.

Docket No. 50155.

Court of Appeals of Michigan.

Submitted Jan. 5, 1982.

Decided March 2, 1982.

Released for Publication May 4, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John A. Smietanka, Pros. Atty., and Angela Baryames, Asst. Pros. Atty., for the People.

Andrew J. Burch, Coloma, for defendant-appellant.

Before R. B. BURNS, P. J., and WALSH and MacKENZIE, JJ.

R. B. BURNS, Presiding Judge.

Defendant was charged in connection with the perpetration of two separate robberies. The jury found defendant guilty of assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and assault with intent to rob, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284. The jury found defendant not guilty of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. The crimes were committed while defendant was a juvenile. The Probate Court waived jurisdiction over the defendant and allowed him to be tried as an adult. Four issues are raised on appeal, none of which warrant reversal.

The prosecutor's opening statement to the jury is challenged by the defendant for allegedly inflaming the passion and prejudice of the jury. The prosecutor, in the opening address to the jury, stated:

"MS. NEMESI: May it please the Court, Mr. Pennington, Mr. Marchione and ladies and gentlemen of the jury, the Defendant, Daniel Ray Pennington, is in court today on three charges: The armed robbery of Kevin Colbert, the assault with intent to rob of Paul Ramsour while armed, and an assault with intent to murder Paul Ramsour. All three of these offenses took place on one night, one night of terror, if you will. That night was August 4th and the early morning hours of August 5th, 1978. For Kevin Colbert the night of terror began at about 2:00 a. m. He was working at that time at what used to be the Arco Station on Napier and Niles Avenue in the City of St. Joseph.

* * *

* * *

"For Ramsour the night of terror began at about 3:30. Mr. Ramsour was at his place of business, Paul's Arco Fill-N-Shop in the City of New Buffalo, Berrien County Michigan." (Emphasis added.)

Specifically, defendant objects to the references in the statement to a "night of terror" and the prosecutor's allusion to "other incidents". Defendant did not object to the opening statement prior to this appeal.

Even where a prosecutor's remarks are prejudicial, failure to object during trial precludes appellate review absent a miscarriage of justice. People v. Duncan, 402 Mich. 1, 15-16, 260 N.W.2d 58 (1977), People v. Hooks, 101 Mich.App. 673, 677, 300 N.W.2d 677 (1980). Whether or not a miscarriage of justice occurred is assessed in light of the prosecutor's argument and conduct. People v. Hooks, supra, 678, 300 N.W.2d 677. The likelihood that a cautionary instruction could have eradicated the prejudicial effect of the remarks, if the objection had been timely, also is to be weighed. People v. Duncan, supra, 402 Mich. 17, 260 N.W.2d 58.

Although the "manifest injustice standard" was promulgated in situations where the prosecutor's remarks in the closing argument were challenged, we find the same standard applies to statements made in the opening argument.

The rationale of this rule is that a case already fully tried should not be overturned based on an isolated incident during trial which could have been readily corrected by a cautionary instruction if a timely objection had been made. This consideration is the same whether the remarks were made during opening or closing argument. In those cases where a conviction has been overturned for prosecutorial remarks during opening statement, the issue was preserved for appeal so the manifest injustice standard did not have to be satisfied. People v. Wheaton, 207 Mich. 173, 173 N.W. 335 (1919).

Where the prosecutor appeals to the jury to perform a civic duty by convicting a defendant, the allowance of the prosecutor's remarks constitutes reversible error. People v. Biondo, 76 Mich.App. 155, 256 N.W.2d 60 (1977). Here, the prosecutor's reference to a "night of terror" did not appeal to the jury's "civic duty" to return a conviction. Rather, it was a statement the prosecutor intended to prove during trial. Opening argument is the appropriate time to state the facts to be proven during trial. People v. Conte, 104 Mich.App. 73, 304 N.W.2d 485 (1981), GCR 1963, 507.1.

The comment on the "other incidents" during the period in question was innocuous. The defendant was on trial for all the incidents during the time sequence of the two robberies. Only where references are to unrelated crimes has a conviction been upset on appeal. People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363 (1971).

Next, defendant claims that the judge erroneously refused to suppress the in-court identification of the defendant by a complaining witness who previously had difficulty identifying defendant at a photographic display and juvenile court waiver hearing. Defendant asserts that the complainant's pretrial exposure to the defendant was suggestive and therefore the court should have required a clear and convincing showing that the identification had an independent basis of support.

People v. Kachar, 400 Mich. 78, 252 N.W.2d 807 (1977), established that a conviction may be reversed if the pretrial identification is unnecessarily suggestive and conducive to irreparably mistaken identification. Once the pretrial identification procedures are shown to be prejudicial, an evidentiary hearing is required to determine if the in-court identification has an independent basis. Kachar, supra.

The record here does not reveal any improper conduct surrounding the photographic display and waiver hearing. It was not incumbent on the trial judge to conduct an evidentiary hearing to determine if the in-court identification had an independent basis. In People v. Davis, 106 Mich.App. 351, 352, 308 N.W.2d 206 (1981), this Court concluded:

"Prior to trial, James Dickerson, an employee of the truck wash who was standing outside just prior to the robbery, was unable to identify defendant's picture during a photographic showup. Defendant argues therefore that Dickerson's subsequent in-court identification of defendant was improper. We disagree. Counsel was present at the showup, and the record indicates that it was not suggestive. We find no authority in support of defendant's contention that the in-court identification was per se violative of due process or that the prosecution was required to establish an independent basis for the witness's in-court identification of defendant. See People v. Currelley, 99 Mich.App. 561, 566, 297 N.W.2d 924 (1980)." (Footnote omitted.)

The complainant explained that although he was unable to identify the defendant before trial he could identify the defendant during trial because defendant's hair had grown to the length worn when the crime was perpetrated. In People v. Belenor, 71 Mich.App. 10, 14, 246 N.W.2d 355 (1976), rev'd on other grounds, 408 Mich. 244, 289 N.W.2d 719 (1980), we held:

"It is granted that the cold record lends considerable weight to defendant's contention that his eventual identification lacked total credibility. Yet our system forces the belief that, absent extraordinary circumstances, a jury can tell who is lying and who is not. Whenever possible, the fact that witnesses were previously unable to identify a defendant should properly go to the credibility and not to the admissibility of subsequent positive in-court identifications. See People v. Harper, 43 Mich.App. 500, 204 N.W.2d 263 (1972), People v. Tyrone Williams, 37 Mich.App. 419, 195 N.W.2d 88 (1971). Our review of the record does not convince us that there has been a miscarriage of justice in this jury's apparent determination to believe the witnesses."

During the assistant prosecutor's opening statement the jury was informed that the codefendant would testify and inculpate the defendant. Defendant assigns error to this statement since the prosecutor was aware that the witness would exercise his right against self-incrimination. Defendant argues that prejudice, which could not be countered, resulted from the statement.

The general rule is that when a prosecutor states that evidence will be submitted to the jury, which subsequently is not presented, reversal is not warranted if the prosecutor acted in good faith. People v. Moncure, 94 Mich.App. 252, 288 N.W.2d 675 (1979), vacated on other grounds, 409 Mich. 905, 295 N.W.2d 494 (1980).

We find the prosecutor acted in good faith when referring to codefendant's testimony, since codefendant's thoughts were contained in a transcript from the waiver proceeding. The testimony of the codefendant was presented to the jury, as the prosecutor promised, albeit in the form of reading from the transcript from the juvenile waiver hearing.

The basis for the admission of the testimony was that the codefendant was found to be an unavailable witness as defined in MRE 804(a)(1), which provides:

"Definition of unavailability. 'Unavailability as a witness' includes situations in which the declarant--

"(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement".

Additionally, MRE 804(b)(1) states:

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

"(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

M.C.L. Sec. 768.26; M.S.A. Sec. 28.1049, which supplements the rules of evidence, provides:

"Testimony...