Opinion
Docket No. 9035.
Decided March 31, 1971. Leave to appeal denied, 385 Mich. 787.
Appeal from Recorder's Court of Detroit, Geraldine Bledsoe Ford, J. Submitted Division 1 November 9, 1970, at Detroit. (Docket No. 9035.) Decided March 31, 1971. Leave to appeal denied, 385 Mich. 787.
John Wesley Brown was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.
Arthur J. Tarnow, State Appellate Defender, for defendant on appeal.
Defendant was convicted by a jury of armed robbery, MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797), and from this conviction he appeals, contending that the conduct of the prosecutor was so prejudicial as to deny him a fair trial. The record indicates that the conduct of the prosecutor was not such as to prejudice unduly the defense's case, and the admonition by the trial judge to the jury to disregard the prosecutor's statements was sufficient to prevent reversible error. People v. Burnstein (1933), 261 Mich. 534; People v. Williams (1968), 11 Mich. App. 62.
During the trial, a police officer testified that, after having given the defendant his constitutional warnings, the defendant declined to make a statement. The following colloquy took place between the police officer and the prosecutor:
"Q. ( Prosecuting Attorney): And after you advised him of his rights, did you talk to him further about this?
"A. ( Prosecution witness): Tried to.
"Q. And did he decline to answer any questions?
"A. He preferred not to make any statements."
At the outset, we note that no objection was made to the question or answers by the defense counsel, and no motion to strike the testimony or request for curative instructions was made. It is oftentimes said that a timely objection at trial to the introduction of allegedly improper evidence is a prerequisite to appellate review. People v. Fry (1969), 17 Mich. App. 229. Defendant alleges that, inasmuch as this constituted an impermissible comment upon defendant's previous exercise of his privilege to remain silent, his failure to object does not preclude review upon appeal. People v. Wilson (1969), 20 Mich. App. 410.
Other than this brief colloquy between the prosecutor and the police witness, the prosecutor made no other references or argument regarding this defendant's right to remain silent. The judge instructed the jury that the defendant had a right and a privilege to remain silent and that no adverse inference could be drawn from such silence. While not convinced that the above colloquy constituted an abridgement of defendant's right to remain silent, we shall assume that it did, but we find the other evidence against this defendant was overwhelming and, if any error was committed, it was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18 ( 87 S Ct 824, 17 L Ed 2d 705), reh. den. 386 U.S. 987 ( 87 S Ct 1283, 18 L Ed 2d 241). Compare People v. John Willie Williams (1970), 26 Mich. App. 218; also People v. Seales (1969), 16 Mich. App. 572; also People v. Hicks (1970), 22 Mich. App. 446; also People v. Bigge (1939), 288 Mich. 417.
Defendant also raises the issue whether the in-court identifications by witnesses were based upon their identifications at a lineup which was conducted during a period of illegal detention. This Court deems it crucial that the defendant did not make timely objection on this issue. People v. Childers (1969), 20 Mich. App. 639. See People v. Adams (1969), 19 Mich. App. 131. Furthermore, defendant's brief furnishes no indication that the delay was improper, unreasonable, or was used for the purpose of obtaining evidence against the defendant. See People v. Farmer (1968), 380 Mich. 198; People v. Ball (1968), 15 Mich. App. 5.
Defendant's last contention of error is that the trial court excluded from the consideration of the jury a possible verdict on an included offense, citing the recently decided case of People v. Lemmons (1970), 384 Mich. 1. In Lemmons, the defendant (as here) was charged with robbery armed. There was no request to charge on the lesser included offense; the charge as given by the court was:
"There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses." People v. Lemmons, supra, p 2.
The Supreme Court held that the trial court erred reversibly when it excluded consideration of any lesser included offenses.
In the instant case, no request to charge on the lesser included offenses was made and no objection to the charge was made, although ample opportunity was afforded both counsel. Furthermore, defense counsel here made a request to charge as follows:
(Defendant's Request to Charge No. 1) "The information in this case charges the defendant with robbery armed. It is for you to decide whether or not the prosecution has proven a case of robbery armed. If it has not done so in accordance with the law as I shall give it to you, it is your duty to render a verdict of not guilty and acquit the defendant."
It is evident that no request to charge was made regarding any lesser included offenses and the trial judge charged the jury substantially in accord with defendant's request.
Finally, the trial judge did not affirmatively exclude the consideration of any lesser included offenses, as in Lemmons. People v. Jones (1935), 273 Mich. 430; People v. Allie (1921), 216 Mich. 133. See People v. Netzel (1940), 295 Mich. 353; People v. John Willie Williams (1970), 26 Mich. App. 218; People v. Herbert Van Smith, Jr. (1971), 30 Mich. App. 384. No reversible error was committed here.
Trial court is affirmed.