People v. Stimage, Docket No. 143094

• Decision Date: 05 October 1993
• Docket Number: Docket No. 143094
• Citation: 507 N.W.2d 778,202 Mich.App. 28
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph D. STIMAGE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 778

507 N.W.2d 778

202 Mich.App. 28

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph D. STIMAGE, Defendant-Appellant.

Docket No. 143094.

Court of Appeals of Michigan.

Submitted Sept. 14, 1993, at Lansing.

Decided Oct. 5, 1993, at 9:20 a.m.

Released for Publication Dec. 3, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., and Daniel A. O'Brien, Asst. Pros. Atty., for the People.

Faintuck, Shwedel & Wolfram by Marvin S. Shwedel, Franklin, and Bruce T. Leitman P.C. by Bruce T. Leitman, Bloomfield Hills, for defendant on appeal.

Before HOLBROOK, P.J., and FITZGERALD and TAYLOR, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of possession with intent to deliver less than fifty grams of cocaine,

M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv). Defendant subsequently pleaded guilty of being an habitual offender, fourth offense, M.C.L. § 769.12; M.S.A. § 28.1084, and was sentenced to a prison term of 3 1/2 to 20 years. Defendant appeals as of right.

Defendant first contends that the trial court erred in permitting a police officer to testify as an expert regarding the significance of the quantity of the drugs allegedly found in defendant's possession as they related to the issue regarding intent to deliver. Defendant did not object to the officer's opinion testimony. Absent a showing of manifest injustice, objections to the admission of evidence cannot be raised for the first time on appeal. People v. Spearman, 195 Mich.App. 434, 445-446, 491 N.W.2d 606 (1992).

Here, the testimony, which was based on the officer's training and experience, was admissible to aid the jury in determining the defendant's intent and his guilt of the charged offense. The fact that the testimony embraced the ultimate issue of intent to deliver did not render the evidence inadmissible. People v. Williams (After Remand), 198 Mich.App. 537, 542, 499 N.W.2d 404 (1993); People v. Ray, 191 Mich.App. 706, 707, 479 N.W.2d 1 (1991).

Defendant also claims that a second police officer's testimony that a drug transaction was taking place was an inadmissible legal opinion. However, at trial defendant objected to the testimony on the ground that the prosecutor had failed to lay a proper foundation for the testimony. An objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground. Williams v. Coleman, 194 Mich.App. 606, 620, 488 N.W.2d 464 (1992). Further, the officer's opinion was not a legal opinion regarding an essential element of the crime charged because proof of an actual delivery of narcotics is not required to prove intent to deliver. People v. Wolfe, 440 Mich. 508, 524, 489 N.W.2d 748 (1992).

Next, we agree with defendant that the informants' statements were inadmissible hearsay. In light of the overwhelming evidence of defendant's guilt, however, the erroneous admission of the statements was harmless. People v. Oswald (After Remand), 188 Mich.App. 1, 8, 469 N.W.2d 306 (1991).

Defendant further contends that the prosecutor injected an improper civic duty argument into his closing statement. Again, we agree. However, the civic duty argument was cured by a cautionary instruction that "arguments of counsel are not evidence." People v. Curry, 175 Mich.App. 33, 45, 437 N.W.2d 310 (1989).

Lastly, defendant claims that the prosecutor's failure to give an opening statement was error requiring reversal.

MCR 6.414(B), which became effective on October 1, 1989, provides:

Unless the parties and the court agree otherwise, the prosecutor, before presenting evidence, must make a full and fair statement of the prosecutor's case and the facts the prosecutor intends to prove. [Emphasis added.]

MCR 6.414(B) is a stylistically revised version of MCR 2.507(A), which governs opening statements in civil trials. Rule 2.507(A) is based on GCR 1963, 507.1. GCR 1963, 507.1, read in part:

Opening Statements. Before the introduction of any evidence, the attorney for the party who is to commence the evidence shall make a full and fair statement of his case and the facts he intends to prove. [Emphasis added.]

In People v. Koharski, 177 Mich. 194, 196, 142 N.W. 1097 (1913), the Court stated:

We are of the opinion that the rule [Circuit Court Rule 24, predecessor to GCR 1963, 507.1, now MCR 2.507(A) ] is directory, and that it was promulgated for the purpose of having the plaintiff's case outlined in advance so that the jury could the better see the force and bearing of the evidence as it came in, and, while we think it is a proper rule to enforce, we are not prepared to say that the refusal to enforce it is reversible error, where its omission is not shown to have been prejudicial to respondent's case.

See also People v. Clayton, 236 Mich. 692, 694, 695, 211 N.W. 42 (1926), People v. Nicen, 123 Mich.App. 258, 261, 333 N.W.2d 243 (1983), and People v. Joseph, 24 Mich.App. 313, 318-319, 180...