Summary
In Williams the motion to suppress defendant's convictions was argued in chambers, but there was no ruling on this motion placed upon the record.
Summary of this case from People v. WordenOpinion
Docket Nos. 77-1705, 77-2196.
Decided June 19, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.
James L. Feinberg, for defendant on appeal.
Before: J.H. GILLIS, P.J., and D.E. HOLBROOK and N.J. KAUFMAN, JJ.
Defendant was tried and convicted by a jury in Oakland County Circuit Court of armed robbery, contrary to MCL 750.529; MSA 28.797, and assault with intent to commit murder, contrary to MCL 750.83; MSA 28.278. He was subsequently sentenced to concurrent prison terms of 6 to 10 years on the armed robbery charge, and 10 to 20 years on the assault charge.
The charges in the instant matter stem from the robbery of a grocery store in Berkley, Michigan. Defendant, along with three others, was arrested after a two-mile chase and shoot-out on Woodward Avenue in the northern suburbs of Detroit.
Defendant now appeals as of right alleging several instances of error.
At the beginning of trial, defense counsel made a motion to suppress defendant's prior criminal record. The trial judge responded, concluding:
"I will take that under advisement. I'd like to know a little bit more about what kind of felonious assault occurred. Come to chambers."
No ruling was ever made upon the record in respect to this motion.
Defendant contends that the trial court committed reversible error in failing to exercise its discretion on the record in response to defendant's motion to suppress his prior criminal record.
"We are persuaded that a trial judge may in the exercise of discretion exclude reference to a prior conviction record, and that it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it." People v Jackson, 391 Mich. 323, 336; 217 N.W.2d 22 (1974).
"On order of the Court, defendant's conviction is peremptorily reversed and a new trial ordered on the ground that defendant sought to have the court exercise its discretion to exclude prior conviction evidence, and it is apparent that the court failed to recognize that it had such discretion and failed to exercise it. See People v Jackson, 391 Mich. 323 (1974). In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion." People v Cherry, 393 Mich. 261; 224 N.W.2d 286 (1974).
Recent decisions from this Court indicate that the exercise of discretion must be on the record. See People v Gunter, 76 Mich. App. 483; 257 N.W.2d 133 (1977), People v Florida, 61 Mich. App. 653; 233 N.W.2d 127 (1975).
Our review of the record reveals that the trial court did err in failing to exercise its discretion on the record. However, this error does not mandate reversal in this case.
After the in-chambers hearing with the trial judge, defense counsel made no mention of his prior motion to suppress defendant's prior criminal record. Defense counsel referred to defendant's prior criminal record in his opening statement, and later, on direct examination, questioned defendant about a prior conviction. Defendant has waived any error by deliberately introducing into evidence his prior criminal record.
"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure." People v Brocato, 17 Mich. App. 277, 305; 169 N.W.2d 483 (1969).
We also note that the evidence of guilt is overwhelming in the instant case, and under such circumstances the improper admission of a prior conviction does not constitute reversible error. See People v Killebrew, 61 Mich. App. 129, 134; 232 N.W.2d 329 (1975), People v Johnson, 46 Mich. App. 212, 221; 207 N.W.2d 914 (1973).
Defendant next contends that the prosecutor's closing argument was so prejudicial that it denied him a fair trial. We disagree.
The closing argument made by the prosecutor was well within the bounds of legitimate and effective advocacy. We find no error in respect to this issue.
Defendant's final allegation of error fails in light of People v Jelks, 33 Mich. App. 425, 431; 190 N.W.2d 291 (1971), and People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976).
Affirmed.
D.E. HOLBROOK, J., concurred.
I concur in the result reached by the majority opinion and its reasoning except insofar as it states that "[t]he closing argument made by the prosecutor was well within the bounds of legitimate and effective advocacy". I cannot so classify the prosecutor's repetition of the old adage that a lawyer should argue the facts if the law is against him, the law if the facts are against him, and attack the police if both are against him. While that remark did not amount to reversible error, it was improper and is not condoned. It should be noted that the remark mentioned above was at variance with an otherwise good closing argument. This, then, is a good opportunity to remind prosecutors that a good closing argument is not enhanced by a foray close to forbidden territory. No extra points are given for daring.