During an argument with another patron of a Wayne County bar on or about July 2, 1986, defendant fired a shot which struck and killed a bystander. A jury convicted defendant of voluntary manslaughter, MCL 750.321; MSA 28.553, assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to five to fifteen years for the manslaughter conviction, five to ten years for the assault conviction, and two years for the felony-firearm conviction. Defendant appeals as of right.
i
On appeal, defendant asserts that he was denied a fair trial due to acts of prosecutorial misconduct. As to several of these instances, defense' counsel failed to object at trial. Therefore the issues are not preserved for review unless defendant can show that (1) the prejudicial effect of the alleged misconduct was so great that even a cautionary jury instruction would not have overcome it and (2) failure to consider the issue would result in a miscarriage of justice.
People v
Jancar,
Several of defendant’s subarguments as to prosecutorial misconduct challenge the prosecutor’s comments during rebuttal and cross-examination
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of defendant. We find all of these arguments unconvincing. First, where defendant put into evidence testimony of his peaceful nature and stated that he carried a knife as a tool and not as a weapon, on cross-examination the prosecutor was allowed to rebut this testimony.
People v Bouchee,
Second, although a prosecutor may not argue in such a manner as to shift the burden onto the defendant to explain something,
People v Nabers,
Third, the prosecutor’s comments during cross-examination to the effect that defendant’s injuries resulting from the altercation were not serious enough to cause his death, whereas the deceased was not so fortunate, may have been undesirable but did not constitute error requiring reversal because they did not infect the trial with unfairness such as to make the resulting conviction a denial of due process.
Darden v Wainwright, 477
US —;
Equally without merit is defendant’s attack on the prosecutor’s remarks during closing argument and rebuttal, that there should be "some meaning to his death” and "a sense of justice after he had died,” as an improper appeal to the jury’s sympathy. While it is true that arguments which are
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little more than an appeal to the jury’s sympathy for the victim are improper,
People v Wise,
Nor are we persuaded by defendant’s assertion that the prosecutor allegedly argued facts not of record. From the facts adduced at trial it was reasonable for the prosecutor to argue that defendant had two guns and was not acting in self-defense. But even assuming the prosecutor’s comments to be error, the error was harmless beyond a reasonable doubt. This is because the alleged error was not so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless and because the evidence against defendant was so overwhelming that no juror would have voted for acquittal.
People v Christensen,
ii
Defendant’s next contention is that he was denied the effective assistance of counsel because his counsel failed to present a defense of diminished capacity.
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Defendant should have raised the issue of ineffective assistance of counsel by moving in the trial court for a new trial or an evidentiary hearing.
People v Ginther,
The record does not support defendant’s contentions. More than hindsight is needed to attack a criminal defendant’s assistance of counsel at trial. The decision to argue self-defense instead of diminished capacity falls in the category of trial strategy. It is inappropriate for this Court to substitute its own judgment for that of defense counsel in such matters.
People v Lotter,
Trial counsel met the requirements of
People v Garcia,
Affirmed.