People v. Yearrell, Docket No. 45059

• Decision Date: 24 October 1980
• Docket Number: Docket No. 45059
• Citation: 101 Mich.App. 164,300 N.W.2d 483
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lewis YEARRELL, Defendant-Appellant. 101 Mich.App. 164, 300 N.W.2d 483
• Court: Court of Appeal of Michigan — District of US

Page 483

300 N.W.2d 483

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lewis YEARRELL, Defendant-Appellant.

Docket No. 45059.

101 Mich.App. 164, 300 N.W.2d 483

Court of Appeals of Michigan.

Oct. 24, 1980.

Released for Publication Jan. 29, 1981.

Chokwe Lumumba, Detroit, for defendant-appellant.

[101 MICHAPP 166] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Paul G. Bruno, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and KAUFMAN and MAHER, JJ.

PER CURIAM.

Defendant was convicted in a jury trial of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and appeals.

Defendant first contends that the trial court erred in denying defendant's motion to suppress evidence of certain prior convictions. Our review indicates that the trial judge exercised his discretion in ruling on the motion, relying on People v. [101 MICHAPP 167] Bennett, 85 Mich.App. 68, 270 N.W.2d 709 (1978). In the instant case, none of the prior convictions were for armed robbery, and each of the larcenous offenses reflected defendant's character. There was no abuse of discretion. See also People v. Worden, 91 Mich.App. 666, 284 N.W.2d 159 (1979).

Defendant also argues that the examining magistrate erred by amending the charge. The amendment was made during the preliminary examination. It was amended as a result of evidence adduced during the testimony. Defendant's right to a preliminary examination on the added charge has not been jeopardized. People v. Erskin, 92 Mich.App. 630, 285 N.W.2d 396 (1979). M.C.L. § 767.76; M.S.A. § 28.1016.

The claim that there was insufficient evidence to bind defendant over for trial is likewise without merit. There was evidence presented that defendant accompanied the principal throughout the commission of the crime and that he drove the car away from the scene. The magistrate acted properly in binding defendant over for trial. People v. Palmer, 392 Mich. 370, 220 N.W.2d 393 (1974).

Our review of the record clearly indicates that the prosecutor's closing remarks do not warrant reversal. So long as the argument is based upon the evidence and does not call upon a jury to decide a case based upon the prestige of the prosecutor's office, the words "I believe" or "I want you to convict" are not improper. People v. Cowell, 44 Mich.App. 623, 205 N.W.2d 600 (1973).

Defendant's final argument is that the sentence of 71/2 to 10 years violates the indeterminate sentence act as mandated by People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972). A reading of the transcript provided to counsel and the court indicates that defendant was in fact sentenced to 71/2 [101 MICHAPP 168] to 10 years rather than 61/2 to 10 years as required by Tanner.

However, the prosecutor counters that a supplemental proceeding of the defendant's sentencing had not yet been transcribed. We have now received the transcript of the "supplemental" proceeding. We are at a loss to understand how the transcription of the two hearings could be, word for word, exactly similar until the prosecutor reminds the court that the sentence should be corrected to reflect 71/2 to 15 years rather than 71/2 to 10 years, which the judge acts upon.

In view of the foregoing, we remand the matter to the trial judge. If a review of his own notes, the court file and the recollection of the parties involved convinces him...