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12/03/75 PEOPLE v. ATCHER

December 3, 1975

PEOPLE
v.
ATCHER



Appeal from Berrien, Chester J. Burns, J.

Allen, P. J., and Danhof and M. F. Cavanagh, JJ.

SYLLABUS BY THE COURT

1. -- Prosecutors -- Closing Arguments -- Improper Remarks -- Preserving Question -- Prejudice -- Miscarriage of Justice.

The absence of objection generally precludes appellate review of allegedly improper remarks made by a prosecutor to a jury in closing argument unless failure to consider the issue would result in a miscarriage of Justice or unless the prejudicial effect of the remarks could not have been eliminated by a prompt objection and curative instruction; the remarks are read as a whole when the court attempts to evaluate any potential prejudicial effect.

2. -- Right to Counsel -- Effective Counsel -- Competence -- Supportive Facts -- Substantive Issues.

A defendant's appellate argument that he was denied effective assistance of counsel in that defense counsel was incompetent and failed to present a coherent credible defense theory is without merit where he fails to adduce any supportive facts and trial counsel's defense theory emphasized virtually the same substantive issues as those argued by appellate counsel.

3. Extortion -- Threats -- Jury -- Supporting Evidence -- Interpretation of Words -- Intent.

A threat with intent to compel a person to do any act against his will must be intelligible to be considered a criminal offense, but where a jury is presented with the words spoken and the context in which they were spoken, there is sufficient evidence to support a finding of guilt should the jury so decide, even though the words might possibly be construed otherwise than as a threat; intent is a question to be decided by the jury from the facts before them.

4. Extortion -- Threats -- Witnesses -- Testimony -- Statutes.

The language of the extortion statute which proscribes threats made with intent to compel the person so threatened to do or refrain from doing any act against his will includes a threat made to a witness in a criminal prosecution to prevent her from testifying (MCLA 750.213).

5. Witnesses -- -- Unindorsed Res Gestae Witnesses -- Rebuttal -- Timely Objection -- Nature of Testimony -- Prejudice -- Harmless Error.

It is not reversible error to permit the prosecution to call an unindorsed res gestae witness on rebuttal even where the defense timely objects and the rebuttal nature of the testimony is unclear where there is no prejudice to the defendant.

6. Witnesses -- Competence -- Courts -- Discretion -- Abuse of Discretion -- Appeal and Error.

The determination of the competence of a witness is a matter within the sound discretion of a trial court, and where no abuse of discretion is shown that ...


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