309 N.W.2d 564 | Mich. Ct. App. | 1981
PEOPLE
v.
STEWART.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal *460 Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.
Robert C. Mueckenheim, for defendant on appeal.
Before: DANHOF, C.J., and J.H. GILLIS and D.E. HOLBROOK, JR., JJ.
PER CURIAM.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549. Thereafter sentenced to a term of life imprisonment, he appeals as of right.
Defendant's first claim is that the trial court erred in allowing a witness to testify that he identified defendant from a photographic lineup conducted while defendant was in custody. While we conclude that the trial court did err in allowing such testimony into evidence, People v Anderson, 389 Mich. 155, 186-187; 205 NW2d 461 (1973), we find such error to be harmless in view of the overwhelming proof of defendant's guilt. See People v Robinson, 386 Mich. 551; 194 NW2d 709 (1972).
Defendant's second claim is that following a Walker[1] hearing, the trial court erred in admitting defendant's statement into evidence. Since said statement was the fruit of an unlawful arrest, we agree. People v Emanuel, 98 Mich. App. 163; 295 NW2d 875 (1980). However, because defendant's statement was not a confession, and in light of the overwhelming proof of defendant's guilt, we find the error to be harmless. Robinson, supra.
Defendant's third claim is that the trial court abused its discretion in allowing the prosecution to *461 elicit testimony that defendant claimed to be without money the night before the homicide. See People v Johnson, 393 Mich. 488; 227 NW2d 523 (1975). Since the prosecution did not elicit the testimony to show that defendant committed the crime because he was in need of money, we find no abuse of discretion. People v Henderson, 408 Mich. 56; 289 NW2d 376 (1980).
Defendant's fourth claim is that certain of the prosecution's comments during closing argument were so prejudicial to defendant that he was denied a fair trial. Since no objection to the comments was raised during trial, appellate review is precluded. People v Rojem, 99 Mich. App. 452; 297 NW2d 698 (1980).
Defendant's fifth claim is that the trial court erred in admitting defendant's semen-stained undershorts into evidence. Since the sexual aspect of the crime was part of its res gestae, we find no abuse of discretion. People v Castillo, 82 Mich. App. 476; 266 NW2d 460 (1978).
Defendant's final contention that the cumulative effect of errors existing in the case served to deny him a fair trial lacks merit since we previously have found any error to be harmless beyond a reasonable doubt.
Affirmed.
NOTES
[1] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).
