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03/24/76 PEOPLE v. RICHARD SMITH

March 24, 1976

PEOPLE
v.
RICHARD SMITH



Appeal from Berrien, Julian E. Hughes, J.

D. E. Holbrook, P. J., and R. M. Maher and D. F. Walsh, JJ. D. F. Walsh, J., concurred. R. M. Maher, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Appeal and Error -- Instructions to Jury -- Timely Objections -- Manifest InJustice.

A defendant who seeks review of an allegedly erroneous instruction must have made a timely objection, absent a showing of manifest inJustice.

2. -- Armed Robbery -- Instructions to Jury -- Lesser Included Offenses -- Armed Robbery -- Compromise Verdicts.

Charging the jury on certain lesser included offenses, in a trial for armed robbery, is not reversible error where defense counsel indicated satisfaction with the charge, the defendant was convicted of the highest crime with which he was charged, there was no compromise verdict, and no manifest inJustice occurred.

3. -- Prosecutor's Questions -- Clear InJustice -- Harmless Error.

A prosecutor's allegedly improper questioning of witnesses is not ground for reversal of a defendant's conviction where no objection was made, a review of the record reflects no clear inJustice, and any error was harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt.

Dissent by R. M. Maher, J.

4. -- Evidence -- Prosecutors -- Innuendo -- Fair Trial.

A defendant was denied a fair trial by a prosecutor's repeated attempts to establish by innuendo matters otherwise inadmissible where the prosecutor's devious means resulted in the introduction of highly prejudicial matters which seriously disadvantaged the defendant's position.

The opinion of the court was delivered by: Holbrook

Richard C. Smith was convicted of armed robbery. Defendant appeals.

Defendant was found guilty by a jury of armed robbery, contrary to MCLA 750.529; MSA 28.797. He was sentenced to prison for a term of 10 to 50 years and he appeals as of right.

At trial the prosecutor introduced largely uncontested evidence which tended to show that on May 6, 1974, defendant went with two friends to Ray's Motel in Stevensville, Michigan. A 71-year-old woman was managing the motel in an effort to assist her friends who owned it. Defendant inquired about renting an apartment for his wife and himself. The evidence is not clear as to whether defendant at that time looked at a room suitable for two people, but at any rate, after being informed of the price for such a room he decided it was too expensive. The manager then informed the defendant that the motel rented sleeping rooms for men at a lower price. At this point, one of the men tenants of the motel entered the office to pay his rent. Defendant went to make a phone call which he told the manager was to his wife, but which he later testified was an incomplete call intended for his mother. While making the phone call, defendant saw the other man pay $50 towards his rent. Defendant then exited the motel and returned a short time later with a friend. He and his friend went to see the room. When they returned, defendant put his hand in his pocket and pointed an object at the manager, announcing a stickup. The manager was ordered by the defendant to open the cash register and lie on the floor. She believed the defendant had a gun in his pocket. Defendant took the money from the cash register, and the men left.

At trial, defendant took the stand in his own defense and admitted most of the allegations. However, he claimed that he had not gone to the motel for the purpose of committing a robbery but was under the influence of LSD, marijuana and alcohol and was moved to commit the crime by the sight of the money tendered by the customer.

Defendant's first allegation of error is that certain lesser included offenses should not have been contained in the charge to the jury. We must first note that no objection was made to the instructions as given; in fact, defense counsel indicated satisfaction with the charge. Absent a showing of manifest inJustice, a defendant who seeks review of an allegedly erroneous instruction must make a timely objection. People v Spaulding, 42 Mich App 492, 496; 202 NW2d 450, 452 (1972). This case does not entail a compromise verdict unsupported by the evidence as was the case in People v Tolliver, 46 Mich App 34; 207 NW2d 458 (1973). Rather, in this case, defendant was convicted of the highest crime with which he was charged. A review of the record fails to disclose any manifest inJustice. Defendant cannot prevail on this issue.

Defendant next argues that the prosecutor questioned certain witnesses in a manner which was intended to establish by innuendo facts which were never directly proven or capable of proof by competent evidence and that this action by the prosecutor constituted reversible error. Defendant made no objection below to the questions asked by the prosecutor. However, we have searched the record for error reflecting clear inJustice and have found none. See People v Hicks, 2 Mich App 461; 140 NW2d 572 (1966). This was not a case of blatant prosecutorial misconduct as was present in People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). The most that can be said is that the prosecutor did not prove that certain questions answered by certain witnesses should have been answered in another manner. If this was error at all, then, in view of the overwhelming evidence of guilt, we rule that it was, beyond a reasonable doubt, harmless. ...


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