People v. Smith, Docket No. 20845

• Decision Date: 14 October 1975
• Docket Number: Docket No. 20845
• Citation: 237 N.W.2d 199,65 Mich.App. 95
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Lamont SMITH, Defendant-Appellant. 65 Mich.App. 95, 237 N.W.2d 199
• Court: Court of Appeal of Michigan — District of US

Page 199

237 N.W.2d 199

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Lamont SMITH, Defendant-Appellant.

Docket No. 20845.

65 Mich.App. 95, 237 N.W.2d 199

Court of Appeals of Michigan.

Oct. 14, 1975.

Released for Publication Jan. 22, 1976.

[65 MICHAPP 96] Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellee.

[65 MICHAPP 97] Before T. M. BURNS, P.J., and QUINN and KELLY, JJ.

T. M. BURNS, Presiding Judge.

On March 26, 1974, defendant was jury-convicted of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced on April 17, 1974, to a term of 7 1/2 years to 20 years in prison and now appeals as of right raising two assignments of error.

Defendant first claims on appeal that certain remarks made by the prosecutor during closing argument were so prejudicial as to deny him his right to a fair trial.

In his closing argument, the prosecutor stated:

'The thing that is really interesting--and Mr. Smith just volunteered it in answer to one of the defense counsel's questions, sort of added it as an afterthought--'Well I didn't even drive that night.'

'Wny is that important? Consider this: What better job or better scheme for a stickup artist than to be working at a party store where there is no time clock, so you get paid even if you are not there, you take off for a half an hour, an hour, 45 minutes, skip down to some place and rob it and (whistling) right back.'

Defendant contends that the characterization of him as a 'stickup artist' was prejudicial and requires reversal. However, defendant neither objected to this remark nor requested a curative instruction from the trial court. In People v. Pacely, 51 Mich.App. 67, 71, 214 N.W.2d 561, 562--563 (1974), this Court stated:

[65 MICHAPP 98] 'The absence of an objection (to the prosecutor's remarks in his closing argument) in the trial court precludes appellate review, unless this Court's failure to consider the issue would result in a miscarriage of justice. The basic standard employed in determining whether the remarks resulted in a miscarriage of justice is whether the allegedly prejudicial effect of the remarks could have been rectified by curative instruction. If so, the failure to object is fatal to the claim on appeal.'

While we think that it would have been best for the prosecutor to have omitted the statement in question from his closing argument, we do not think that it was so prejudicial as to deny defendant a fair trial. The allegedly prejudicial effects of the remarks could have been rectified by a curative instruction. We find no miscarriage of justice present in the case at bar. See People v. Gould, 61 Mich.App. 614, 233 N.W.2d 109 (1975) (defendant referred to as a 'dope dealer'), People v. Davis, 57 Mich.App. 505, 226 N.W.2d 540 (1975) (defendant referred to as a 'brutal killer'), People v. Giacalone, 52 Mich.App. 428, 217 N.W.2d 444 (1974) (defendants described as 'pros'), People v. Plozai, 50 Mich.App. 131, 212 N.W.2d 721 (1973) (defendant labeled as a 'murderer').

We now come to defendant's final and most serious allegation of error. Upon completion of its charge to the jury but prior to the time the jury started its deliberations, the trial court said:

'Now before you go in, I will not reread any testimony, so don't ask for that. If there is a question of law, all you will have to do is rap on the door and I will bring you back out and explain that to you. A question of law, but not a question of fact. Do we understand that? All right. Will you kindly step inside the jury room.'

[65 MICHAPP 99] Defendant maintains that the trial court's action in categorically refusing to reread any portion of the trial testimony constitutes reversible error.

In People v. Howe, 392 Mich. 670, 221 N.W.2d 350 (1974), the trial court refused to reread the testimony of two witnesses as requested by the jury. The Court first reiterated the rule when a jury requests testimony to be read back to it, both the reading and the extent of the reading is a matter confided to the sound discretion of the trial court. Howe, supra, at 675, 221 N.W.2d 350. The Court went on to hold that the trial court's refusal to reread testimony constituted an abuse of discretion where the trial court failed to consider the jury's reasonable request. Howe, supra, at 677, 221 N.W.2d 350. In so holding, the Court said:

'a jury will at times require testimony read back to it to resolve...