Summary
stating that, "[t]he defendants did not object to the prosecutor's remarks at the trial and so appellate review of them is barred unless the error, if any, could not have been [cured] by a cautionary instruction"
Summary of this case from Hardaway v. BurtOpinion
Docket Nos. 9936, 9937.
Decided February 28, 1972. Leave to appeal denied, 387 Mich. 801.
Appeal from Kent, George V. Boucher, J. Submitted Division 3 February 3, 1972, at Grand Rapids. (Docket Nos. 9936, 9937.) Decided February 28, 1972. Leave to appeal denied, 387 Mich. 801.
Johnny S. Majette and Eugene E. Thompson were convicted of armed robbery. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston, III, Chief Appellate Attorney, for the people.
William J. Heyns, for defendant on appeal.
Before: FITZGERALD, P.J., and R.B. BURNS and HOLBROOK, JJ.
The defendants were convicted by a jury of the armed robbery of Tesseine's Pharmacy in Grand Rapids, Michigan on Thanksgiving Eve, November 26, 1969. MCLA 750.529; MSA 28.797. On appeal several issues have been raised, none of which have merit.
The issue relative to the form of the complaint and warrant was not preserved for review by timely objection. People v. Graves, 15 Mich. App. 244 (1968), and People v. Russell J Davis, 24 Mich. App. 344 (1970). See also MCLA 767.49; MSA 28.989. The allegation that the defendants were denied the effective assistance of counsel is not supported by the record. There is no evidence that defense counsel's representation was a mockery of justice or shocking to the judicial conscience. People v. Degraffenreid, 19 Mich. App. 702 (1969). Decisions based on strategy do not justify reversal solely because the strategy was unsuccessful. People v. Kaczor, 14 Mich. App. 724 (1968). Additionally, the trial judge commended defense counsel on the record for his handling of the case and defendant Majette stated that he was pleased.
Regarding the people's failure to offer indorsed but non-res gestae witnesses, this was proper procedure. Indeed, it may be reversible error to offer indorsed witnesses that have not been called to testify. People v. Ruggero, 223 Mich. 368 (1923). See People v. Keiswetter, 7 Mich. App. 334 (1967), and People v. Love, 18 Mich. App. 228 (1969).
The defendants did not object to the prosecutor's remarks at the trial and so appellate review of them is barred unless the error, if any, could not have been cured by a cautionary instruction. People v. Humphreys, 24 Mich. App. 411 (1970). We have found no such error. A prosecutor is entitled to comment on the evidence and to draw reasonable inferences therefrom. People v. Joshua, 32 Mich. App. 581 (1971).
Allowing Michael Williams to refuse to answer on the ground it might incriminate him was not error. The answers apparently would have related to illegal drug activities and would have implicated the defendants as well. That may be why defense counsel did not object. One who testifies on behalf of the state is not required to incriminate himself as to some other crime, and even a codefendant who elects to testify waives his constitutional immunity only as to questions material to the case. People v. Robinson, 306 Mich. 167 (1943). Here the charge was armed robbery, not illegal drug traffic.
The trial court properly instructed the jury to disregard testimony stricken during the course of the trial. The credibility of the witnesses was for the jury to determine. People v. Knapp, 34 Mich. App. 325 (1971). A challenge to the weight of the evidence must first be presented to the trial court. People v. Reese, 28 Mich. App. 555 (1970), and People v. White, 32 Mich. App. 296 (1971).
The alleged prejudice to Majette because Thompson elected to testify is unbriefed and therefore considered abandoned. People v. Williams, 29 Mich. App. 420 (1971), and People v. Heard, 31 Mich. App. 439 (1971).
The convictions are affirmed.