People v. Tarpley, Docket No. 11705

• Decision Date: 30 May 1972
• Docket Number: Docket No. 11705,No. 2,2
• Citation: 199 N.W.2d 839,41 Mich.App. 227
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Eugene TARPLEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 839

199 N.W.2d 839

41 Mich.App. 227

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Eugene TARPLEY, Defendant-Appellant.

Docket No. 11705.

Court of Appeals of Michigan, Division No. 2.

May 30, 1972.

Released for Publication Aug. 23, 1972.

Sam F. Trentacosta, Warren, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Donald L. Milbourn, Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and LEVIN and TARGONSKI, ^* JJ.

TARGONSKI, Judge.

Defendant appeals as of right from a conviction by jury verdict of assault with intent to do great bodily harm in violation of M.C.L.A. § 750.84; M.S.A. § 28.279. We adopt the following abbreviated statement of facts from the appellee's brief.

On the evening of October 24, 1970, the complaining witness George Garrison, 17 years of age, was employed at Young's Party Store in St. Clair Shores, Michigan. At approximately midnight he closed the store after having cleaned it up. About ten minutes before closing he called his fiancee on the phone and told her he would stop by her home briefly after closing the store. He also called the store owner at 5 minutes to 12 before leaving the store. Shortly after leaving the store near the corner of Nine Mile and Mack he picked up a hitchhiker who told him that his girlfriend had stolen his car. Mr. Garrison then offered to take the hitchhiker home after stopping briefly at his fiancee's house. Both Garrison and his fiancee identified the defendant as the hitchhiker. Other witnesses placed the defendant in a bar next door to the complaining witness's place of employment earlier on the evening in question and the defendant admitted his presence in the bar.

Garrison did stop briefly at his fiancee's home a few minutes later. She saw the defendant in Garrison's car and after a brief interval Garrison left her home with the avowed purpose of taking the defendant home. Garrison testified that after driving a short distance he felt a sting on his right temple and the defendant said 'stop the car or I'll let you have another one like the first'. Garrison apparently lost consciousness at this point and his car went off the road into a ditch where it became stuck.

Shortly thereafter the complaining witness staggered to the door of a home a short distance away. He was bleeding heavily from the head and in a state of shock. He told the family to call the police and that he had been hit by a gun by a man in a blue Mustang. His car was subsequently found in a ditch a short distance away.

Garrison was taken to the hospital immediately where it was determined that he had been shot in the head, that many fragments of a bullet were imbedded in his brain and that it was surgically impractical to remove the bullet fragments. Before losing consciousness at the hospital Garrison gave a full description of his assailant to a police officer. This description was broadcast over police radio along with continuing reports of locations in the adjacent area where someone answering the defendant's description had been seen on foot.

A short time later a police car for the City of Warren was checking an area where a man had been observed on foot, and the officer saw a man answering the broadcast description walking down the street. As the officers approached this individual he broke and ran between several houses. The officers gave chase on foot and followed the man over several fences. This individual, subsequently identified as the defendant, was finally apprehended after one of the officers shot him in the leg. The officers recovered a .22 caliber revolver from the ground near one of the fences that the defendant had jumped over in the course of pursuit.

Defendant was taken to Bi-County Hospital in Warren where he was held as a police prisoner until he was sufficiently recovered to leave the hospital. Defendant was released from the hospital on October 29, 1970, and arraigned the same day on a charge of assault with intent to murder.

At the conclusion of the people's case and after disposition of preliminary motions by the defendant's counsel defendant took the witness stand in his own behalf. The substance of his testimony was that he had no idea how he had gotten into Garrison's car. He testified that he woke up abruptly in the car and found Garrison sexually molesting him. Further, when he protested Garrison jumped off of him and began to drive the car away. The defendant drew his gun and pointed it at Garrison in an effort to compel the complaining witness to let him out of the car. The defendant then testified that Garrison grabbed at the gun which went off accidentally, shooting the complaining witness in the head. The jury returned a verdict of guilty of assault with intent to do great bodily harm less than the crime of murder. M.C.L.A. § 750.84; M.S.A. § 28.279. Defendant appeals this conviction as a matter of right. He was charged in the information on which tried with the crime of assault with intent to murder. M.C.L.A. § 750.83; M.S.A. § 28.278.

Defendant raises four issues on appeal. We choose to discuss only the third such ground raised by the defendant as we believe it will be dispositive of this matter and a discussion of the other issues would not enhance the jurisprudence of this State significantly to justify such discussion.

We do not believe that the language employed in either brief properly frames the third issue and consequently select the following language as properly presenting the issue before the Court:

Was the prosecuting attorney's closing argument containing comments upon defendant's guilt and credibility sufficiently prejudicial to deny defendant a fair and impartial trial?

The prosecution contends that the remarks of the prosecutor in the trial court in his closing argument were proper but, in any event, even if not proper they are not before this Court for review since there was no objection during the course of the trial, nor was there any request for a curative instruction. As a general proposition of law a conviction will not be reversed if by failing to object the defendant has allowed the impact of the prosecutor's remarks to go uncorrected by an instruction. People v. Smith, 16 Mich.App. 198, 167 N.W.2d 832 (1969). From a review of the cases it is apparent that the failure to object is and should be a bar to review only where the goal of objection--a cautionary instruction--in all likelihood would have eliminated the prejudice arising from the prosecutor's remarks. People v. Humphreys, 24 Mich.App. 411, 416, 180 N.W.2d 328 (1970). With this standard in mind we proceed to an examination of the remarks made by the prosecutor during the course of his argument to the jury. The plaintiff in its brief states that exception is taken to the fact that appellant has quoted only selected portions of the prosecution's argument out of context and then proceeds to present its own selected portions likewise out of context. Accordingly, we have examined the entire transcript of the argument presented by the prosecution at trial and cite some examples of the objectionable language employed in the course of such argument.

On the very first page of the transcript of the prosecutor's argument appears the following:

'Now, as you know the charge is not murder; this is fortunate and thank the Lord it is not. Mr. Garrison is still living four months after this, so the charge is assault with intent to commit murder.

'That you heard this testimony that definitely put Ken Tarpley in that car and definitely showed that he had the gun, and in fact owned this Imperial (gun). We even convinced him so that when he got on the stand he didn't deny it.

'Now, if we failed in our proofs of putting him in the car and putting him there with a gun then he could say, 'well, there is a defense, I haven't been identified, I haven't been put at the scene of the crime, and this is a monstrous case of identification,' so we did prove those elements, and there is another reason why I'm glad we did, because I don't want you ladies and gentlemen of the jury To rely for any essential elements in this case on anything that Kenneth Tarpley says to you. I don't want you to have to do that. (Emphasis Added.)

'If this case were retried again and we knew what the defense was going to be we would still go through that because we want proof that you can believe and I don't believe you can believe by even the word of mouth of this man. (Emphasis Added.)

'Now, was Ken Tarpley ever in Garrison's car? George Garrison told us that he picked Ken up and after the assault he staggered into the Windhorst home. * * * He kept repeating this (I have been his with a gun by a man in a blue Mustang) like a broken record automatically with no chance to make up a story, so apparently someone was in that car.

'I think you heard one of the finest bits of scientific testimony you will ever hear * * *. (H)e put Ken Tarpley in that car with fingerprints * * * and he traced them to Tarpley.

'These were compared with fingerprint cards at the station and so Ken was in the car, and you don't have to rely on Ken's testimony for that. You can take that on the word of people you can believe, who are unimpeached and credible. (Emphasis Added.)

'You don't have to take it on the credibility of a once convicted felon as he told us he is. You don't have to take it on the word of somebody who at the pre-trial hearing, as far as the ownership of this gun goes, testified Exactly to the contrary of what he testified at trial and under oath both times. (Emphasis Added.)

'This is what he thinks of an oath. You don't have to take the word of someone whose livelihood he says two years and his friend says maybe three years...