Following a jury trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, on September 1, 1978. On December 26, 1978, he was sentenced to life imprisonment. He appeals as of right.
Defendаnt was originally charged with first-degree murder on the theory that he aided and abetted his friend, Steve Massias, in a premeditated plot to kill Massias’s ex-girlfriend, Karen "Katy” Taylor.
*27 The testimony offеred by the people at trial revolved around the actions of defendant, Steve Massias, and Larry Martin on March 7 and 8, 1978, as told by Larry Martin. 1 Defendant and Martin had lunch and dinner together оn March 7, 1978. They went to Big Daddy’s bar in Kalamazoo around 7 p.m. Steve Massias and Mark and Karl Waber joined them there. They drank and shot pool until approximately 9, when defendant drove thеm to a topless dancing establishment called "Club Zorba” on Massias’s suggestion. Massias’s ex-girlfriend Katy worked there as a dancer. They stayed for approximately one hour drinking and watching Katy dance. While at Club Zorba, Massias asked Martin for a gun. Martin refused. The five of them then returned to Big Daddy’s, dropped off the Wabers, and proceeded to defendant’s parents’ house where defendant obtained a shotgun and shells for Massias. They drove to defendant’s house where Massias test fired the shotgun. After defendant removed a jammed, spent shell casing, they returned to Club Zorba, drank more, played pool, and watched Katy dance. Martin, overcome by tiredness and liquor, went to the car. At some point defendant joined him. Massias waited in thе bar until Katy called a taxicab, returned to the car, loaded the shotgun, and, while the car was parked within sight of the bar entrance, said, "If I don’t get her here, we’ll get her at her apartment”. When the taxi pulled up in front of the bar, defendant drove the car in front of the taxi. Massias yelled directions and defendant backed the car around behind the taxi. When Katy and another woman came out of the bar at approximately 2 a.m., Massias fired three shots, killing Patricia Williams. As they sped off, Massias said, *28 "I shot the wrong fucking bitch”. They went to defendant’s house. Defendant returned the shotgun to his parents’ house and they all slept until 7:30 the next morning. Defendant drove Martin to work the next day and then drove Massias to Chicago in his father’s pick-up truck.
Defendant testified that Massias kept asking for a gun because Massias was afraid of some people from New Orleans. Defendant agreed to loan Massias his father’s gun if given $300 as security. After the test firing, they went to Club Zorba to look for "Pete” who had Massias’s money. He left the bar with Martin and waited in the car for one half hour. Defendant became sick and briefly left the car. When he rеturned, Massias was sitting in the front passenger seat holding the shotgun. Massias had indicated that he was afraid for Katy (referring to the people from New Orleans) and wanted to pick her up in оrder to protect her. Defendant drove up next to the taxi, then backed up to park behind the taxi because he was low on gas. When Katy came out, Massias shot at her. Defendant testified that he had no knowledge that Massias would shoot.
Defendant first argues that he was deprived of his right to confront the witnesses against him when the trial court, over objection, admitted alleged hearsay statements by finding a concert of action.
The people concede that the testimony was hearsay but argue that the court was correct in finding a concert of action.
The out-of-court statements of a declarant are admissible against a defendant if there exists a concert of action or conspiracy bеtween defendant and the declarant and the statements are made while the common scheme or plan is still in effect.
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See
People v Trilck,
We hold that the statements were propеrly admitted against defendant because a prima facie case of concert of action was shown.
Defendant also argues that he was deprived of his right to a jury trial when the trial court made this ruling before the jury:
"THE COURT: Okay, gentlemen, based upon the case law as I understand the case law, this is — I’ve already ruled this concerted action has been established. I’ve also ruled it’s a part of the res gestae as what happened to indicate up to and including the time of the murder. The objection is overruled. You may answer.”
Defendant claims that the. judge’s comments made the jury’s resolution of the two questions before the jury a foregone conclusion, i.e., that murder was committed and that defendant aided and abetted Massias in committing it.
While we deplore comments such as these which could be given undue weight by the jury, we conclude that the comments, standing alone, do not require reversal. The trial court instructed the jury several times during the trial that its rulings *30 on evidence do not reflect any personal opinions and that the jury must not give them any weight.
Defendant next argues that he was deprived of his right to a fair trial when the prosecutor made misstatements of fact in his final argument to the jury:
"We indicate to you and submit that the evidence shows that Christopher Champion intended his actions. And you can infer intеnt because a shotgun was used. He got the weapon, the weapon was test fired and he unjammed the weapon, he positioned that car, he was lying in wait for someone to walk out of that Club Zorba and kill and it was malicious, there was malicious, there was malice involved, he created this high risk situation and if there isn’t malice when then what is the testimony of Larry Martin which Missias says, 'We got the wrong fucking bitch’? Doesn’t look like any kind of sadness to me, that’s what the testimony is that Missias said. ” (Emphasis added.)
Defendant correctly points out that Massias said he had shot the wrong woman, not "we”.
After defendant’s closing argument, the prosecutor argued:
"And he misses a critical part of Red Martin’s testimony. You’ll remember that when Red testified you were out in the hall, in the hall when he did it, there was some rulings and so some law when you came back Mr. Deryck asked Red, 'You didn’t plot with anybody, did you?’ 'No, I didn’t.’ 'Because you didn’t hear anybody plot anything, you didn’t hеar anybody say we were going to get Katie?’ 'Yeah, I did, I just don’t remember who. Sure did.’ ”
Again, defendant correctly points out that Larry Martin denied hearing plotting of any kind.
Since defendant failed tо object to the allegedly improper remarks, appellate review is precluded
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unless it can be said that an objection and the appropriate curative instruсtion could not have eliminated the prejudice arising from the prosecutor’s argument.
People v Hall,
Defendant also argues that he was deprived of his right to a fair trial by the prosecutor’s cross-examination оf defendant. Defendant claims that the prosecutor threw the skunk of suggestion into the jury box by incorporating unsubstantiated prejudicial statements into many of the questions asked of defendant.
It must first be noted that defense counsel did not object to the prosecutor’s cross-examination. Thus, we will not reverse unless we find a miscarriage of justice.
People v Stoudemire,
We have reviewed defendant’s other allegations
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of error аnd conclude that reversal is not required. The trial court did not abuse its discretion when it admitted three photographs of the deceased. See
People v Nard,
Affirmed.
Notes
Martin was granted immunity in exchange for testifying.