*1 WILLIAMS PEOPLE v 77-1705, 2, 1978, May Lansing. Docket Nos. 77-2196. Submitted at 19, Decided June 1978. Williams, II, robbery Charles was convicted of armed and assault Circuit with intent to commit murder in Oakland Far- Roberts, appeals, contending rell E. J. Defendant that the trial on the court erred in to exercise its discretion record in considering defendant’s motion to record, prosecutor’s closing argument prejudicial, that the was and that was denied effective assistance of counsel. Held: 1. The trial court’s failure to exercise its discretion on the error, record was but reversal is not mandated because an on the matter defense counsel made no more mention of the motion to and in fact waived the by deliberately introducing error record, the defendant’s and because the evidence of defendant’s 2. within the bounds and effective
3. The assistance of counsel issue is without merit. , point concurs that he would out that the remarks of the while amounting not reversible were not be condoned.
Opinion
Court
1. Criminal
Law —Evidence—Prior Convictions —
tion.
A trial
discretion exclude
exercise of his
[3]
[2]
[1,
Supreme
29 Am Jur
2]
5 Am Jur
75 Am Jur
prosecuting
5 Am Jur
Court’s views as to what courtroom statements
2d, Appeal
2d,
2d,
denial of
2d,
References
attorney during
Evidence 320.
Trial
Appeal
§§
%ir
and Error 562.
§
and Error
trial.
A trial court’s erroneous failure to exercise its discretion on the regarding a motion to exclude his
conviction record not mandate does reversal where after an in- chambers defense counsel made no further mention of motion, deliberately defendant waived then criminal record into and where the evidence of Improper Argument. 3. Criminal Law —Prosecutor’s Comments — comment, lawyer A that a the facts if law is law the him and attack the if both are while it did not amount to reversible and should not be condoned. Kelley,
Frank J. Robert A. General, Attorney Derengoski, L. Patterson, Brooks General, Solicitor Williams, Robert C. Prosecuting Attorney, Chief Richards, and Thomas S. Counsel, Appellate As- sistant Prosecuting Attorney, people. Feinberg,
James L. for defendant on appeal. Gillis, Before: J. H. P. and D. E. Holbrook and N. J. JJ. Gillis,
J. H. P. J. Defendant was tried and con- victed a Oakland Circuit Court County of armed robbery, 750.529; to MCL contrary MSA 28.797, murder, and assault with intent to commit 750.83; contrary to MCL MSA 28.278. He was subsequently prison sentenced to concurrent terms App 226 robbery charge, armed of on years charge. the assault 10 to 20 years on stem from the matter charges Michigan. store in grocery Berkley, robbery of others, Defendant, along with was arrested three on chase and a two-mile shoot-out Woodward of Detroit. the northern suburbs Avenue right alleging sev- appeals Defendant now instances of error. eral trial, defense counsel beginning
At the motion responded, concluding: The trial judge I’d to know a take under advisement. like "I will what kind of felonious assault more about little bit Come to chambers.” occurred. *3 the in record ruling upon ever made
No to this motion. trial that court commit- Defendant contends failing to exercise its discre- reversible error ted mo- response to defendant’s tion on prior criminal record. to tion persuaded that a trial "We prior to con- exclude reference of discretion exercise recognize it is to fail to and error viction and, therefore, to has to fail or he such discretion Jackson, People 391 Mich to it.” v refuse exercise (1974). conviction is order of the defendant’s "On and a trial ordered on reversed new peremptorily sought to have court exercise ground that defendant prior discretion and exclude its apparent the court failed it is People it. failed to exercise See such discretion and had (1974). Jackson, to comply 391 In order with Mich 323 v positively must indicate the trial court Jackson People 229 v Williams identify People its v Cherry, exercise of discretion.” 393 (1974). 261; Mich 224 286 NW2d
Recent decisions from this Court indicate that the exercise of discretion must be on the record. Gunter, People v 483; See 76 App Mich 257 NW2d (1977), People Florida, v 133 App NW2d 127
Our review the record reveals the trial court did err in to exercise its discretion on However, the record. this error does not mandate . reversal in this case. After with *the trial judge, defense counsel made no mention of his prior prior motion to crimi- nal record. Defense counsel referred to defendant’s statement, record in his opening later, examination, on direct questioned de- fendant conviction. about Defendant has waived by deliberately into evidence "Counsel cannot sit back and harbor error to be used appellate parachute as an in the event of failure.” Brocato, 277, 305; NW2d
We also note that
is over-
evidence
whelming
case,
such
and under
a prior
circumstances
admission of
conviction does not
reversible error. See
Killebrew,
People v
129, 134; 232
61 Mich App
Johnson,
*4
212, 221;
Defendant’s of error fails Jelks, Garcia, D. E. Holbrook, concurred. (concurring). I concur
result majority opinion reached and its reasoning insofar states "[t]he closing argument made prosecutor was well within the bounds of and effective advo- I cacy”. cannot so classify repeti- adage tion of the old a lawyer if facts the law is the law if the and attack the both are him. While remark did not amount to reversible it was improper and is not condoned. It should be noted that the remark mentioned above was at variance with an other- good This, then, wise closing argument. good is a opportunity prosecutors to remind good thafei a is not enhanced close foray to forbidden territory. points given No extra daring.