People v. Plozai

• Decision Date: 30 October 1973
• Docket Number: Docket No. 12974,No. 3,3
• Citation: 50 Mich.App. 131,212 N.W.2d 721
• Parties: PEOPLE of the State of Michigan, Plainiff-Appellee, v. Anthony PLOZAI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 721

212 N.W.2d 721

50 Mich.App. 131

PEOPLE of the State of Michigan, Plainiff-Appellee, v. Anthony PLOZAI, Defendant-Appellant.

Docket No. 12974.

Court of Appeals of Michigan, Division No. 3.

Oct. 30, 1973.

Released for Publication Dec. 19, 1973.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Norman K. Marsh, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and FITZGERALD and VanVALKENBURG,* JJ.

PER CURIAM.

ON REHEARING

Defendant was convicted by jury of first-degree murder. M.C.L.A. § 750.316; M.S.A. § 28.548. We initially reversed his conviction March 22, 1973, on the grounds that the prosecutor had made improper and prejudicial remarks in his closing argument to the jury. The Roscommon County Prosecutor along with the Prosecuting Attorney's Appellate Service made an application for rehearing April 10, 1973, which we granted May 2, 1973.

We have reviewed our former opinion and have decided that our determination therein was erroneous. We found reversible error in the prosecutor's remark in closing argument, even though not objected to, that:

'William Carter Ellixson was a policeman also serving his country, doing all he could to protect society. He walked, thought, had his little vices, supported his wife, cared for children, managed his business, ran for public office, planned for his future in his retirement years. I speak of him in the past. This was once a man. Here is what we have got left of him. (Indicating) Because on January 9th, 1971, out in a lonely cottage in the beautiful woods of winter, he was foully murdered, and there sits his murderer.'

We relied on People v. Ignofo, 315 Mich. 626, 24 N.W.2d 514 (1946) for the proposition that the prosecutor's expression of defendant's guilt was so highly inflammatory and patently prejudicial that reversal was warranted though no contemporaneous trial objection was made. We note, however, that in a number of more recent cases this Court has found no reversible error in prosecutorial remarks of similar character that were not objected to at trial. People v. Evans, 36 Mich.App. 238, 241, 193 N.W.2d 387, 389 (1971); People v. Smith, 16 Mich.App. 198, 201, 167 N.W.2d 832, 834 (1969); People v. Russell, 27 Mich.App. 654, 663, 183 N.W.2d 845, 850 (1970); People v. Rowls, 28 Mich.App. 190, 195, 184 N.W.2d 332, 334--335 (1970). Moreover, in Ignofo only two Justices thought the statement by the prosecutor that 'Joe Neuff (the defendant) killed that man' constituted reversible error despite the absence of an objection, while three Justices, concurring in the result, were unwilling to hold that the statement could not have been cured by appropriate court instruction, and the remaining two Justices concurred in the result without opinion. We believe the prejudice resulting from the prosecutor's remark here could have been cured by instruction had defendant objected to the remark below and therefore we decline to reverse on this issue.

Four other issues raised by defendant on appeal need now be considered. First, defendant contends that the court's refusal to allow him to be present at an in-chambers conference denied his rights to a fair trial and to be present during trial. See People v. Medcoff, 344 Mich. 108, 73 N.W.2d 537 (1955). This is not a case where an in-chambers hearing was held on the conduct of jurors, which has been held to be a critical stage of the proceeding. See, People v. Percy Harris, 43 Mich.App. 746, 204 N.W.2d 734 (1972). Rather, the judge here explicitly stated that only legal matters were to be discussed, and defendant's lawyer would be present in chambers. Thus, this case falls under the purview of cases like People v. Townsend, 24 Mich.App. 286, 180 N.W.2d 101 (1970) and People v. Bowman, 36 Mich.App. 502, 194 N.W.2d 36 (1971), holding that defendant's presence at conference is required only where his substantial rights may be affected, such as where evidence might be introduced. Even though defendant objected to his absence from the conference, and although it is wiser policy to allow the defendant to be present at all conferences that occur during trial no matter their nature in order to neutrailize this issue on appeal, we can find no prejudicial error here where the trial judge stated that only matters of law would be discussed and defendant's counsel was present during the conference.

Second, defendant contends it was reversible error to admit into evidence a rifle discovered as a result of an alleged illegal search and seizure. However, a motion to suppress evidence on the basis of an illegal search and seizure must generally be made prior to trial. GCR 1963, 108.4; People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357 (1965); People v. Lyttle, 39 Mich.App. 544, 198 N.W.2d 40 (1972). Defendant's failure to file a timely motion to...