Defendant was convicted by a jury of armed robbery and felony-firearm contrary to MCL 750.529; MSA 28.797 and MCL 750.227b; MSA 28.424(2). He was sentenced to the mandatory two years imprisonment for felony-firearm and 5 to 15 years imprisonment for the armed robbery. He appeals as of right.
Of the issues raised on appeal only three merit extended discussion.
Defendant first argues that his right to confrontation was violated when the trial court limited the full scope of defense counsel’s recross-examination of a key prosecution witness. Specifically, the defendant predicates error on the fact that he was precluded during recross-examination from showing that this witness had been unable to make an out-of-court identification of the three other persons who had been simultaneously arrested with defendant and, allegedly, were coparticipants in the robbery. He likewise complains about being precluded from showing that this witness misidentified an uninvolved person during a lineup identification. After reviewing the record, we are persuaded that the court’s action in limiting the recross-examination in this regard did not constitute reversible error.
It is well settled that the permissible scope of cross-examination during a trial is vested in the sound discretion of the trial court. Such discretion is not to be disturbed unless a clear abuse of discretion is shown.
People v Taylor,
Under the facts and circumstances of this case, the significance of the witness’s ability to identify all the alleged participants in separate lineups is only minimally relevant to his unequivocal identification of defendant. The witness was able to make in-court identification of defendant; he was able to pick defendant out of a lineup; he was able to identify the clothing worn by defendant. Defense counsel was allowed complete latitude in his cross-examination as to this positive identification of defendant. Further, the record only suggests that the three other persons whom the witness failed to identify were truly the coparticipants in the robbery. Indeed, these three persons were named by defendant as "alibi witnesses” who, if his testimony is to be believed, never were present *350 at the scene of the crime. Additionally, two of the actual coparticipants stayed in the car outside of the restaurant so the witness never saw them except at a distance. Finally, this inability to identify the three other coparticipants from the lineup was fully developed and argued by defense counsel in the closing argument to the jury. As this challenged evidence only remotely bore upon the witness’s positive, unequivocal identification of defendant, we find no abuse in the trial court’s ruling and no improper restriction of defense counsel’s scope of recross-examination amounting to a denial of the fundamental right of confrontation.
Defendant also argues on appeal that his felony-firearm conviction must be set aside because the prosecution did not offer positive proof that the weapon was in operable condition. We disagree. No such duty is imposed by Michigan case law, and defendant’s argument, therefore, is without merit.
The general rule is that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution.
People v Stephenson,
"The Supreme Court has found that the legislative purpose behind the felony-firearm statute is to deter the use of firearms due to their inherent dangerousness. Wayne County Prosecutor, supra. Therefore, the felony-firearm statute requires a construction in harmony with that finding, MCL 8.3; MSA 2.212.
"It is our opinion that the prosecutor need not present proof of operability as an element of a prima facie case in a felony-firearm prosecution. A contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur.” Id., 177.
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This rule was recently reaffirmed in
People v Mason,
"We agree with the position taken in People v Gibson,94 Mich App 172 ;288 NW2d 366 (1979), that the prosecutor need not present proof of operability as an element of the prima facie case in a felony-firearm prosecution. To hold otherwise could prevent prosecution under the statute in cases where the weapon is not recovered, even though the victim testifies to its existence. Additionally, as was noted in Gibson, '[a] contrary requirement would be inconsistent with the legislative intent of discouraging the practice of carrying guns in circumstances where harm is apt to occur’. People v Gibson, supra, 177.”
See, also,
People v Boswell,
Accordingly, we find defendant’s argument to be without merit.
Defendant also asserts that the trial court erred in refusing defendant’s request to explain to the jury the absence of an alibi witness with whom the defendant testified that he had spent the time in question. Defendant contends that he should have been permitted to call a process server to the stand to testify regarding the futile efforts to subpoena Mr. Coward. Defendant argues that this testimony was necessary to negate any adverse inference which the jury could draw from his failure to call the alibi witness and that this error was exacerbated by the prosecutor’s comments in closing argument that the jury should evaluate defendant’s testimony on the basis of whether or not it was corroborated. We find this argument to be without merit. It is well settled that a prosecutor is permitted to comment on a defendant’s failure to produce "corroborating” witnesses when
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ever the defendant takes the stand and testifies on his own behalf.
People v Ovegian,
This is in contradistinction to comments which parade before the jury the fact that the defendant initially gave notice of alibi witnesses but subsequently was unable or unwilling to produce such witnesses to testify in his defense. It is in this latter situation that prosecutorial comment can result in reversible error.
People v Hunter,
In the case at bar, the jury was never apprised of the fact that the defendant had originally intended to call alibi witnesses but was unable to do so. Therefore, we conclude that no error requiring reversal resulted from the prosecutor’s brief reference to the fact that defendant’s testimony was uncorroborated.
We have examined the other issues raised by defendant and find them to be without merit.
Defendant’s conviction is affirmed.