201 N.W.2d 115 | Mich. Ct. App. | 1972
PEOPLE
v.
TURNER.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Joan Clarke, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow, State Appellate Defender, for defendant.
Before: V.J. BRENNAN, P.J., and QUINN and O'HARA,[*] JJ.
Leave to appeal denied, 388 Mich. 790.
O'HARA, J.
This is an appeal of right from a jury conviction of second-degree murder, MCLA 750.317; MSA 28.549.
Defendant first complains that the trial court relied on testimony contained in the preliminary examination transcript to deny a defense motion for a directed verdict. He urges application of the Ramsey[1] doctrine. Ramsey is inapposite. Ramsey and its progeny only prohibit a trial judge from referring to a preliminary examination transcript when he also acts as trier of fact. This case was tried by a jury.
Defendant next contends that the introduction *746 into evidence of prior consistent statements by a prosecution witness was reversible error. Authority and precedent hold otherwise. Testimony given at a preliminary examination may be used to refresh the recollection of a witness, to test his credibility, and may be referred to during argument. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 537, pp 641-642.
Thirdly, the assertion is made that the trial court erred when it denied defendant's motion to dismiss the charge of first-degree murder. MCLA 750.316; MSA 28.548. We do not agree. The testimony of prosecution witnesses, if believed, could establish that defendant removed the weapon from the police officer's holster, stepped back, and deliberately shot him. There was time for reflection and premeditation. The trial judge did not commit error in permitting the jury to consider the charge of first-degree murder.
Fourthly, defendant claims that he was denied a fair trial because of objectionable and disparaging remarks by the trial judge which could have had an adverse effect upon the jury's assessment of the defense. Once again we do not agree. We have examined the record and the context in which the alleged impropriety occurred. The court's comments weighed in the context and the circumstances of a heated trial do not approach the magnitude necessary for reversal on the ground that the trial court pierced the veil of judicial impartiality. People v Roby, 38 Mich. App. 387 (1972).
As to defendant's next assignment of error, we note that a prosecutor has the right to cross-examine a defendant concerning his prior convictions for the purpose of testing credibility. MCLA 600.2158; MSA 27A.2158. Absent a showing of a *747 clear abuse of discretion, the scope of cross-examination allowed by the trial court will not be disturbed. People v Taylor, 386 Mich. 204 (1971). We find no such showing of abuse.
Finally, defendant's allegations of impermissible prosecutorial comment are insufficient to establish the degree of prejudice necessary to conclude that, for this reason, he did not receive a fair trial. The remarks were not so prejudicial as to cause the jury to suspend its own power of judgment in receiving the evidence before it. People v Humphreys, 24 Mich. App. 411 (1970).
Affirmed.
All concurred.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] People v Ramsey, 385 Mich. 221 (1971).