Opinion
Docket Nos. 30476, 30477.
Decided November 14, 1977.
Appeal from Recorder's Court of Detroit, Joseph A. Gillis, J. Submitted October 12, 1977, at Detroit. (Docket Nos. 30476, 30477.) Decided November 14, 1977.
John E. Pratton and David Thompson were convicted of armed robbery. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Walter J. Piszczatowski, Assistant Prosecuting Attorney, for the people.
Leonard Townsend, for defendants.
Defendants were convicted by a jury of armed robbery, contrary to MCLA 750.529; MSA 28.797, and sentenced to a term of from 3-1/2 to 20 years imprisonment. They appeal as of right.
Defendants contend that the trial court erred by denying their motion to dismiss based on the prosecutor's failure to produce a res gestae witness. We find that the trial court erred in submitting the issue of due diligence to the jury because as a matter of law it could not have found due diligence, People v Yarborough, 61 Mich. App. 303; 232 N.W.2d 394 (1975). However, defendants' requested remedy was an instruction that the jury could draw unfavorable inferences from the prosecutor's failure to produce the witness. The trial court complied with that request. Defendants did not, thereafter, request further relief. We construe the totality of circumstances as equivalent to a waiver of any previous objection. Defendants were satisfied with this remedy at trial; they cannot now seek alternative forms of relief in this Court.
Defendants next allege that the trial court erred by refusing to grant defendants' motion for a directed verdict. As the prosecutor produced some evidence establishing each of the three elements of armed robbery, defendants' motion was properly denied. People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), People v Trotter, 76 Mich. App. 260; 256 N.W.2d 585 (1977).
Defendants also challenge the trial court's decision to direct a more restrictive question to the prospective jury panel at voir dire than that specifically requested by defense counsel. The trial court would not have been inconvenienced to ask the broader question; nevertheless, its refusal cannot be termed an abuse of discretion. People v Harrell, 398 Mich. 384; 247 N.W.2d 829 (1976).
Defendants' allegation that the trial court erred in its instruction to the jury on the defense of intoxication is frivolous. The instruction was modeled after the Michigan Criminal Jury Instructions on specific intent and the defense of intoxication and clearly satisfies the criteria of People v Crittle, 390 Mich. 367; 212 N.W.2d 196 (1973).
Defendants' final assertion of error is without merit. Defendant Thompson sought to introduce evidence of his history of alcoholism in order to support his defense of intoxication. The trial court excluded the testimony, stating that the proposed evidence did not tend to support the defendants' contention that they were intoxicated at the time the offense occurred. Although the question is a close one, we cannot say that the trial court abused its discretion in excluding this testimony. People v Ebejer, 66 Mich. App. 333; 239 N.W.2d 604 (1976). The proffered witnesses could not testify regarding the defendants' state of mind or degree of intoxication on the day of the crime. Since intoxication rather than alcoholism was the defense in this case, it was not unreasonable for the trial court to conclude that such lack of knowledge precluded the possibility of relevant testimony tending to bolster the defense.
Finding no reversible error, we therefore affirm.
Affirmed.