People v. Ford
People v. Ford
Opinion of the Court
On June 22, 1973, a jury found defendant guilty of armed robbery, MCLA 750.529; MSA 28.797. On July 6, 1973, defendant received a sentence of 7 to 15 years in prison with 184 days credit for time served.
Defendant raises three allegations of error on appeal. First, defendant argues that the prosecutor’s question as to whether defendant was going to subpoena a witness to testify in defendant’s behalf was analogous to the prohibition against commenting upon defendant’s exercise of his right to remain silent, and was improper and prejudicial. Second, defendant argues that reversible error was committed when the prosecutor, in the course of his argument, referred to some evidence which had not been admitted during trial. Finally, it is urged that reversible error occurred when the prosecutor questioned defendant about a prior inconsistent statement which had previously been excluded by the trial court.
This case arises out of an armed robbery which occurred at the Admiral Motel, located on South Gratiot just north of 15 Mile Road in Clinton Township, on January 5, 1973. The manager of the motel testified that at about 9 p.m., defendant came into the motel and asked for a room, and the
Defendant testified that on the night in question he was on his way to a party, and stopped at the motel to secure a room which he and a female companion were to share later that evening. He testified that he had hitchhiked to the motel because a friend of his, who was having the party with another person, was using defendant’s automobile. Defendant said that after talking with the motel manager, he reached down for some money which he kept in his sock, and heard the manager tell defendant to get out of the motel because he did not like defendant’s "kind in here”. Defendant became angry, and said that he told the manager that he would "blow the place up”. As he turned to leave, he was shot in the shoulder, and fell to the floor. He denied taking any money from the cash drawer, and denied that he was involved in any sort of armed robbery at the motel on the night in question. He acknowledged that he had a starter pistol in his possession, and stated that it belonged to another person from whom he had obtained it about one hour earlier in a nearby saloon. He said that he wanted the pistol to protect himself because the party was being held in an area frequented by "shady people”.
The above facts are relevant to defendant’s initial argument, and we find that claim to be without merit. The prosecutor is entitled to comment upon defendant’s failure to produce corroborating witnesses, and the trial court afforded more protection to defendant than he was entitled to receive. People v Gant, 48 Mich App 5, 8-9; 209 NW2d 874 (1973). See also People v Hooper, 50 Mich App 186, 196-197; 212 NW2d 786 (1973), lv den, 391 Mich 808 (1974).
Testimony was received from both the manager of the motel and from the police officers who arrived on the scene that the money allegedly taken from the cash drawer was lying on the floor near defendant’s body, particularly near his feet. While one officer testified that he collected the money, put it in his pocket and returned to the station to count it, the money was never offered into evidence. The officer said that he had placed it in an envelope and subsequently put it into a safe. The envelope was then taken to a' state police crime laboratory and tested for fingerprints, and was returned in another envelope. The officer’s first envelope was not returned to him, and he was
In Martin, defendant was charged with one specific instance of sale of heroin. MCLA 335.152; MSA 18.1122. During his closing argument, the prosecutor referred to defendant as a pusher and said that "many people” go to such a person. Although there was no evidence that defendant sold heroin to other people, the court held that in view of the entire summation and the cautionary jury instruction, no reversible error was present. Martin said that if any prejudice occurred, that prejudice had been cured by the trial judge’s instruction to the jury that it had a duty to make findings of fact and draw inferences from the testimony rather than from what the attorneys argued. 37 Mich App 621, 632.
In the instant case, the trial court told the jury that it was to draw its own conclusions from the
Relying upon People v Allen, 299 Mich 242; 300 NW 59 (1941), defense counsel argues that reversible error was committed when the prosecutor asked defendant whether defendant had ever made a different statement other than that which he had made to the jury. During trial, the jury was excused and the prosecutor made an offer of proof, placing Detective Russell Day on the witness stand. Day testified that on June 11, 1973, he was visiting another prisoner in the jail, when defendant called out to the officer and said: "Can I cop a plea to attempted armed robbery? After all, I didn’t get out of the building with the money, that’s an attempt, that’s not armed robbery.” The officer said that he told defendant to wait and talk to his attorney about this matter. The officer said that he neither solicited, encouraged nor pursued this conversation. The prosecutor moved to allow the introduction of this evidence in his case in chief, defense counsel objected, and testimony was taken from defendant, on a special record, the jury still being absent, which indicated that defendant had just seen his attorney and said: "They are
Defendant testified in his own behalf, and on cross-examination the prosecutor inquired "and you’ve never made a different statement other than this that you’re giving us today?” Defense counsel immediately objected, and the trial court sustained that objection. The prosecutor once again asked whether defendant’s trial testimony was the first time he had related his version of what happened the night in question. Defense counsel objected, and the jury was excused. The prosecutor argued that he wanted to introduce defendant’s previous statement to show that he told a different story to the police officer. The trial judge told the prosecutor that he had to lay a proper foundation. The jury returned, and the prosecutor asked: "Now, did you ever have occasion while you were incarcerated in the county jail to talk with the police officer and give him a contrary statement?” Defense counsel objected, and the jury was excused. The prosecutor, relying upon Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), argued that this prior inconsistent statement was admissible to impeach defendant’s credibility. The trial judge stated that
The trial court then told the prosecutor that he had the right to ask defendant whether or not he made a contrary statement, and that defendant would be allowed to answer yes or no. The trial judge told the prosecutor that if defendant answered yes, the prosecutor "could have gone into it”. However, if defendant replied "No”, the court said: "[t]hat’s the end of it. You go on to something else. Then it would seem to me that you would put your witness in the form of rebuttal.” He then told the prosecutor that he could ask defendant the question. The jury was returned to the courtroom, the question at issue was read back to defendant by the reporter, defense counsel objected and the jury was excused. The prosecutor then stated that he was offering the proof that defendant had made a contrary statement previous to taking a lie-detector test on April 18, 1973. The judge excluded such evidence but said that because defendant had taken the witness stand, his credibility was at
It is well established that defendant’s voluntary statements are not precluded from admission into evidence. People v Moore, 51 Mich App 48, 51; 214 NW2d 548 (1974). Harris, supra, held that an otherwise voluntary statement, although taken in violation of one’s Miranda rights, could be introduced to impeach defendant’s credibility. 401 US 222, 225-226; 91 S Ct 643, 645-646; 28 L Ed 2d 1, 4-5. The record discloses no improper police conduct, and belies the conclusion that defendant’s statement was untrustworthy.
A further problem with the evidence at issue was that it related to defendant’s offer to plead guilty. As a general rule, offers by an accused person to plead guilty are inadmissible on the grounds that plea bargaining is to be encouraged for the purpose of achieving the effective administration of criminal justice and that admissibility of the statement would discourage the practice. McCormick, Evidence (2nd Ed), § 274, p 665, and cases cited therein. On the other hand, Michigan apparently allows the admission of an accused’s offer to settle his case. Although it is established that evidence of a previously withdrawn plea may not
Affirmed.
See People v Reed, 393 Mich 342; 224 NW2d 867 (1975), for a discussion of Harris, supra, and the use of trustworthy and voluntary statements as opposed to the proscription against using involuntary statements to impeach one’s credibility.
See contra, People v Morris, Docket No. 14273, released December 4, 1974 (unpublished per curiam).
Concurring Opinion
(concurring in result). My approach to this case is somewhat different from that of Judge Allen.
There was direct unequivocal testimony by the manager of the motel that defendant demanded from him money at gunpoint. After getting the money and while attempting to flee the scene the manager shot him. He fell to the floor. A police officer recovered a bundle of currency at his feet. Because of insufficient chain-of-custody testimony the money was not identified as that taken in the robbery. It was a thoroughly permissible inference by the jury that the currency found was that so taken.
The defendant testified to a completely different version of the event. He claimed he was refused room rental when he asked for it, and was shot as he left the place. He admitted he had a "starter pistol” on his person at the time and place in question.
Which one the jury chose to believe was their sole prerogative. They chose to believe the manager. That issue ends there.
The other issues Judge Allen discusses may well have been procedural errors. To me they do not individually or collectively rise to constitutional or reversible level. Proof of defendant’s guilt beyond any reasonable doubt was adduced.
There is a statute in this state which reads as follows:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure,*48 unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” (Emphasis supplied.) MCLA 769.26; MSA 28.1096.
I presume it means what it says. I have, as the statute demands, made an "examination of the entire cause”. I have no reservation in saying that the errors complained of did not result in a miscarriage of justice.
I too vote to affirm.
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