*1 SMITH PEOPLE v RICHARD op Opinion the Court Jury— Appeal and Error —Instructions 1. Criminal Law — Timely Injustice. Objections —Manifest allegedly A of an erroneous instruc- defendant who seeks review timely objection, showing absent a tion must have made a injustice. manifest Robbery Jury 2. Criminal Law —Armed —Instructions —Lesser Robbery Compromise — Verdicts. Included Offenses —Armed offenses, Charging jury included on certain lesser a trial robbery, is not reversible error where defense coun- armed charge, the defendant was sel indicated satisfaction with charged, highest with which he was convicted of the crime verdict, compromise- injustice no and no manifest there was occurred. Injustice— 3. Criminal Law —Prosecutor’s Questions —Clear Harmless Error. prosecutor’s allegedly improper questioning A of witnesses is not objec- ground where no for reversal of a defendant’s conviction made, injustice, clear tion was a review of the record reflects no any beyond error was harmless a reasonable doubt view overwhelming guilt. of the evidence of 4. Criminal Law —Evidence—Prosecutors—Innuendo—Fair Trial. prosecutor’s repeated denied a fair trial
A defendant was attempts to establish innuendo matters otherwise inadmissi- devious means resulted in the intro- ble where highly prejudicial seriously disadvan- duction of matters which position. taged the defendant’s [1] [2] [4] [3] 75 Am 75 Am 5 Am Jur Am Jur Jur Jur 2d, Appeal and Error 652. 2d, 2d, 2d, References Criminal Law Trial Trial §§ §§ 876-882. 176, 193, for Points §§ 221, § 194. 222, in Headnotes 234-240. Richard Smith Opinion op the Court Berrien, Appeal Hughes, from Julian E. J. Sub- (Docket 7, 1976, mitted Grand January Rapids. at 22984.) 24, No. Decided March 1976.
Richard C. Smith was convicted of armed rob- bery. Affirmed. appeals. Defendant
Frank J. Kelley, Attorney General, Robert A. Derengoski, John A. Smietanka, General, Solicitor Zack, Sally M. Prosecuting Attorney, and Assist- ant Prosecuting for the Attorney, people.
Roger Wotila, L. Assistant Appellate State fender, for defendant. J.,
Before: D. E. P. and R. M. Maher Holbrook, and D. F. JJ. Walsh,
D. E. P. J. Defendant was Holbrook, found guilty by a jury armed robbery, contrary to 750.529; MCLA MSA 28.797. He was sentenced to prison for a term of 10 to 50 years and he appeals right. as of
At trial introduced largely uncon- tested evidence which tended to show that on May 6, 1974, defendant went with two friends to Ray’s Stevensville, Motel Michigan. A 71-year-old woman managing was the motel in an effort to assist her friends who it. owned Defendant in- quired renting about an apartment for his wife and himself. The evidence is not clear as to whether defendant at that time looked at a room people, rate, suitable for two but at any after being informed price of the for such a room he it expensive. decided too manager then was informed the defendant the motel rented sleeping rooms for men at a price. lower At this point, one of the men tenants of the motel entered op Opinion the Court the office to rent. Defendant his went pay make phone a manager call he told the which was to his wife, but he later testified which was an incom- plete call intended for his mother. While making the phone call, defendant saw the other man pay towards his rent. $50 Defendant then exited the motel and returned a short time later with a friend. He and his friend went to see the room. returned, When they put defendant his hand in pocket his pointed object an at the manager, announcing stickup. The manager was ordered by the defendant open register the cash and lie on the floor. She believed the defendant had a gun pocket. Defendant took the money from the cash register, and the men left. trial,
At took the stand in his own defense and admitted most of allegations. How- ever, he claimed that he had gone to the motel *3 for the purpose of committing a robbery but was LSD, under the influence of marijuana and alcohol and was moved to commit the by crime the sight of the money by tendered the customer. allegation
Defendant’s first of error is that cer- tain lesser included offenses should not have been contained in the charge to the jury. We must first note that objection no was made to the instruc- given; fact, tions as in defense counsel indicated satisfaction charge. with the Absent a showing of manifest injustice, a defendant who seeks review of an allegedly erroneous instruction must make a timely objection. People v Spaulding, 42 Mich 492, (1972). 496; 450, 202 NW2d 452 This case does not entail compromise a verdict unsupported by the evidence as was the case in People Tolliver, v (1973). 46 App 34; Mich Rather, NW2d 458 in case, pf this defendant was highest convicted the crime with which he charged. was A of review the People Smith Richard v Maher, by R. M. J. any injustice.
record fails to
manifest
disclose
on
issue.
prevail
fendant cannot
this
argues
prosecutor
the
ques-
Defendant next
that
tioned
certain witnesses
in manner which was
intended
innuendo
facts
by
establish
which
were
of
proven
capable
proof
never
or
directly
competent
evidence
and that
this action by the
prosecutor constituted
reversible error. Defendant
objection
questions
made no
the
below to
asked
prosecutor. However,
we have searched the
record
reflecting
for error
injustice
clear
and have
Hicks,
v
found none.
See
Affirmed. Walsh, J.,
D. F. concurred. (dissenting). cross-examination of defendant reveals a calcu- *4 attempt introduce, lated innuendo, way matters irrelevant yet highly prejudicial to defend- ant. One line of cross-examination insinuated that defendant’s mother had police told the de- fendant had stolen her car: App 138 yours? "Q. had wasn’t you And the car "A Correct. car?
"Q. your It was mother’s "A. Correct. mother didn’t even know your "Q. it a fact And isn’t you the car? had Yes,
"A. she did. police your talked with "Q. you Are aware that mother? Yes, I
"A. am. your mother told the what "Q. you And do know police? them, no. she told
"A. I am not aware what said, your mother told the ”Q. you I know what do police?
"A I do not. Now, you saying your mother knew
"Q. you are had the car?
"A. Yes. permission? it her
”Q. you That had with "A Yes. using a car?
"Q. your mother What was may explain the circumstances around "A. If I clarify this to this court of how I think it would car came upon the car. ”Q.You can answer. approximately towards the Saturday, It on a "A was March, take her if I could use the car to I asked
end a came back I took him to Mishawaka friend to Mishawaka. there I went to Coloma and into Niles and they up the time when the car until just didn’t return charge. for this stopped me and arrested me with Mills talked "Q. you Are aware that Detective and brother? your mother aware, just you have other than what
"A. I am not told me.” that defend- trial court had ruled
Although the for im- inadmissible convictions were prior ant’s cross-exami- purposes, peachment *5 Richard Smith by R. M. Mahek, J. Dissent that conveyed nation the notion defend- skillfully had a trouble with law history ant enforcement agencies. through his implying, questions, After police position as a drug defendant used his suspicion, prosecutor informant to avoid em- ployed questioning: line following ”Q. you informing only And to the were Coloma Department, right? Police is that "A. Correct.
"Q. informing You weren’t to the Depart- Sheriffs ment?
’A. is This correct. "Q. you Department Because knew the Sheriff’s knew were, you you right? and what is that not CA. I question cannot I answer because don’t you know what mean.
”Q. might apply Police, That to the State too. 'A. I question. didn’t hear that last ”Q. applies Police, they That you State knew too?
’A. I do not this. know
"Q. you Township But had the Coloma Depart- Police ment fooled.
'A. I did not have them fooled.
”Q. They thought you goody- were a—had turned goody?
’A. The reason I had even worked with the Coloma Township past Page Police is because I knew Jack from the Vanway. go Officer La I used to to school with working them. The reason for not with the Sheriff’s Metro, Department was personal because of some on [sic]. "Q. You knew certain members on the Sheriff’s
partment?
"A. Yes.
”Q. you they And knew too? Well, they 'A. probably have. lived around have my here all life. App 138 you you knew years. So few ”Q. way From back right? them, is fool couldn’t any- fool trying to been haven’t "A. I have never —I body.” (Emphasis supplied.) duty violated *6 Brocato, 17 Mich App v People public, see (1969), repeated at-
277; 483 169 NW2d matters otherwise innuendo tempts to establish Coleman, 539; App Mich People v inadmissable. Farrar, (1974), Mich NW2d 585 (1971). I think the Since 294; 193 NW2d matters devi- highly prejudicial introduction po- disadvantaged defendant’s seriously ous means sition, majority’s conclu- disagree with I must trial. would fair received sion that a new trial. reverse and remand