People v. White

• Decision Date: 07 February 1978
• Docket Number: Docket Nos. 77-897,77-990
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Malchi G. WHITE and Glenn Newson, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 100

265 N.W.2d 100

81 Mich.App. 226

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Malchi G. WHITE and Glenn Newson, Defendants-Appellants.

Docket Nos. 77-897, 77-990.

Court of Appeals of Michigan.

Feb. 7, 1978.

Released for Publication April 26, 1978.

Carl Ziemba, Detroit, for White.

Charles T. Burke, Livonia, for Newson.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Chief App. Counsel, Asst. Pros. Atty., Anne B. Wetherholt, Craig L. John, Asst. Pros. Attys., for plaintiff-appellee.

Before BEASLEY, P. J., and D. E. HOLBROOK, Jr. and KELLY, JJ.

KELLY, Judge.

Defendants Malchi White and Glenn Newson were convicted of breaking and entering an unoccupied building, with intent to commit larceny therein, by a Detroit Recorder's Court jury after being tried jointly. M.C.L.A. § 750.110; M.S.A. § 28.305. Both defendants were sentenced to serve nine to ten years in prison. Defendants have appealed as of right and their cases have been consolidated.

Defendant White raises five issues, while defendant Newson raises only one.

Initially, defendant White contends that the prosecutor impermissibly commented on his failure to testify. Defendant immediately objected, but the court gave no cautionary instruction. A review of the record indicates that defendant's counsel initiated remarks in his closing argument about his client's failure to testify. The prosecutor in his rebuttal commented on the defense remarks.

The objectionable rebuttal was in response to the following argument made by defense counsel:

"I didn't see the necessity of putting him (White) on any witness chair and letting the slilled (sic ) and shrewd prosecutor interrogate him under examination. There is always the possibility under fear and cross-examination that something might come out and might be misunderstood by you ladies and gentlemen of the jury."

Whereupon, the prosecutor in rebuttal noted in part:

"That Mr. Miller (defense counsel) was afraid to put his man on the stand to subject him to my skilled cross-examination and he was afraid something might come out. My only comment is, ladies and gentlemen, had this happened, maybe the truth might come out."

We fail to see what further prejudice was caused defendant White after his own counsel stated that "something might come out and might be misunderstood" if White had taken the stand, compared to the prosecutor's remark that "maybe the truth might come out". Both sides speculate.

The jury was well aware that defendant White had not testified. Defense counsel's remarks could be interpreted by a jury as expressing concern that his client would incriminate himself. Of course his intention was to parade the prosecutor's sophistication against defendant's supposed naivete. The prosecutor's rebuttal did not prejudice defendant White's case. There is no reversible error when the prosecutor's remarks, even if otherwise improper, are "made primarily in response to matters previously discussed by defense counsel". See People v. Pomranky, 62 Mich.App. 304, 310-311, 233 N.W.2d 263, 266 (1975), lv. den., 397 Mich. 823 (1976); People v. Jones, 75 Mich.App. 261, 277, 254 N.W.2d 863 (1977).

Turning the coin defendant White next contends that he was denied effective assistance of counsel because his attorney argued his failure to testify thus canceling his constitutional fifth amendment right to silence. It appears that White's trial counsel used his argument as part of valid trial strategy. There is no merit to defendant's contention that this amounts to ineffective assistance of counsel. See People v. Garcia, 398 Mich. 250, 266, 247 N.W.2d 547 (1976). Able counsel know that jurors are often distressed by a defendant's failure to testify.

The last issue requiring any discussion is raised by both defendants White and Newson. They assert that their sentences of nine to ten years violate the provisions of the indeterminate sentencing act, M.C.L.A. § 769.8; M.S.A. § 28.1080, and the rule set forth in People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972).

The indeterminate sentencing act, M.C.L.A. § 769.8; M.S.A. § 28.1080 provides:

"When any person shall hereafter be convicted for the first time of crime committed after this act takes effect * * * the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided." (Emphasis added.)

In People v. Tanner, supra, at 690, 199 N.W.2d at 204, the Supreme Court established the following rule under this act:

"Convinced as we are, that a sentence with too short an interval between minimum and maximum is not indeterminate, we hold that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence act."

The sentences in the present case are nine to ten years, clearly contra to the Tanner "two-thirds" rule if it applies. The question is whether the rule applies to the defendants who have previous felony convictions. This is not a new question.

We adopt the following reasoning set forth recently by another panel of this Court in People v. Banks, 73 Mich.App. 492, 494, 252 N.W.2d 501 (1977), wherein the majority stated "It is apparent * * * that the Supreme Court (in People v. Tanner ) limited its holding that a minimum sentence exceeding two-thirds of the maximum is improper applies only to cases to which the indeterminate sentence act applies.

"The indeterminate sentence act, M.C.L.A. § 769.8; M.S.A. § 28.1080, reads in part as follows:

" 'When any person shall hereafter be convicted for the first time of crime committed after this act takes effect. (The court imposing sentence shall not fix a definite term of imprisonment but shall fix a minimum term except as hereinafter provided.)' (Emphasis added.)

"Since defendant's conviction for larceny in a dwelling house was defendant's third conviction the court was not bound by the indeterminate sentence act and was free to sentence defendant as its discretion dictated. Absent an abuse of discretion, the trial court's decision will not be disturbed. We find no abuse of discretion and defendant's sentence (three to four years) shall stand." (Emphasis in 73 Mich.App. 494, 252 N.W.2d 502).

Cf. People v. Ungurean, 51 Mich.App. 262, 214 N.W.2d 873 (1974); People v. Redwine, 73 Mich.App. 83, 85, 250 N.W.2d 550 (1976) (Anderson, J., dissenting).

We are aware of and undismayed by other decisions of this Court applying Tanner to defendants with prior convictions. Courts sometimes make mistakes. Even supreme courts. See People v. Redwine, supra; People v. Bullock, 48 Mich.App. 700, 705-706, 211 N.W.2d 108 (1973); People v. Hempton, 43 Mich.App. 618, 204 N.W.2d 684 (1972); People v. Justice, 50 Mich.App. 55, 212 N.W.2d 762 (1973), lv. den., 391 Mich. 792 (1974). See also Judge Cavanagh's dissent in People v. Banks, supra. Even the Supreme Court has adopted this approach. People v. Haggitt, 388 Mich. 773, 200 N.W.2d 321 (1972), and People v. Jordan, 388 Mich. 773, 200 N.W.2d 321 (1972). Both of these decisions were memorandum opinions and did not discuss the indeterminate sentencing statute in its application to multiple offenders. See also People v. Moore, 391 Mich. 426, 430, 216 N.W.2d 770 (1974), wherein the Supreme Court noted that the Court of Appeals, in an unpublished opinion, applied Tanner to prior offenders. The Supreme Court did not discuss the issue.

The plain language of the statute applies the indeterminate sentencing act to those who are first offenders. M.C.L.A. § 8.3a; M.S.A. § 2.212(1). The general rules of statutory construction require that: "(e)very word,...