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12/04/75 PEOPLE v. GRAY

December 4, 1975


Appeal from Recorder's Court of Detroit, Dalton A. Roberson, J.

D. E. Holbrook, P. J., and J. H. Gillis and M. J. Kelly, JJ.


1. -- Appeal and Error -- Prosecutor's Questions -- Miscarriage of Justice.

Review of a claim of error resulting from the alleged prejudicial questioning by a prosecutor is limited to ascertaining whether or not a miscarriage of Justice occurred where defense counsel failed to object; no miscarriage of Justice occurred where the alleged error was in a single question by the prosecutor regarding a prior conviction and where the defendant, on direct examination, actually benefited by leading the jury to believe that he had been convicted of a less serious crime.

2. -- Instructions to Jury -- Prior Offenses.

A single mischaracterization by a trial Judge in his jury instructions on credibility in which the Judge referred to the defendant's prior offenses, instead of the defendant's prior offense, did not result in a miscarriage of Justice; the error did not pertain to a basic or controlling issue and the error could have been easily cured if defense counsel had objected.

3. -- Sentencing -- Judges -- Discretion -- Appeal and Error.

The trial Judge alone determines the length of a defendant's sentence; his decision is not subject to review if it is within the limits of the law.

4. -- Sentencing -- Claimed Innocence.

A defendant who maintains his innocence after conviction may not be given a longer sentence solely because he refuses to admit his guilt.

5. -- Sentencing -- Lack of Remorse -- Statutes.

A defendant's failure to express any remorse concerning a prior conviction, or concerning commission of a crime which he does not deny, is a relevant facet of his character and may be taken into account by a sentencing court (MCLA 771.14; MSA 28.1144).

The opinion of the court was delivered by: Holbrook

Dennis E. Gray was convicted of armed robbery. Defendant appeals.

Defendant was charged with robbery while armed, contrary to MCLA 750.529; MSA 28.797. He was found guilty by a jury, and sentenced to 15 to 25 years imprisonment. He now appeals.

Defendant's conviction resulted from testimony tending to show occurrences as set forth below.

At approximately 12:05 a.m. on September 10, 1974, two men came through the front door of Little Harry's Restaurant on East Jefferson in Detroit. One of the men carried a sawed-off shotgun. The other man was identified by several witnesses as the defendant. The man with the sawed-off shotgun announced a stickup and told everybody to get down on the floor. The people in that particular room laid down on the floor, but the piano player got up and ran. Defendant chased and caught the piano player, then told him that he didn't want to hurt him and to "be cool". Everyone was then taken into the kitchen where they were again made to lie on the floor while defendant relieved them of their valuables. The night manager of the restaurant pleaded with defendant not to take his wedding ring, but defendant responded by saying "take it off or I'll blow your blank blank head off".

Defendant then went into the bar area where he told the bartender and patrons to get into the kitchen. When they did so they were made to lie on the floor and were relieved of their valuables.

During this time a certain Mr. English was employed at Little Harry's Restaurant. On the night in question, he was in the kitchen when he heard someone come into the restaurant and announce a stickup. He ran to the second floor and jumped out one of the windows on that floor. He went across the street to a police garage and told the police what was happening. Two policemen came with Mr. English to the restaurant, and called for some more policemen. The policemen then surrounded the building.

Back inside the restaurant, after everyone had been forced to give up their valuables, the two men announced that they were leaving and ordered everyone to stay face-down on the floor for ten minutes. Defendant and the other man then ran out the front door, but the other man came back inside right away and ran upstairs.

One of the police officers from the police garage arrested defendant as he exited the restaurant. This officer testified as follows:

"Q. (By Mr. Morgan, prosecuting attorney) Where did you first observe Mr. Gray?

"A. The top of the steps in front of the restaurant Little ...

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