People v. Watson , 52 Mich. App. 211 ( 1974 )

52 Mich. App. 211 (1974) 217 N.W.2d 121

PEOPLE
v.
WATSON

Docket No. 14427.

Michigan Court of Appeals.

Decided March 26, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas M. Khalil, Assistant Prosecuting Attorney, for the people.

Leonard Townsend, for defendant.

Before: V.J. BRENNAN, P.J., and T.M. BURNS and VAN VALKENBURG,^[*] JJ.

V.J. BRENNAN, P.J.

Defendant, Joe Eddy Watson, appeals from his conviction of first-degree murder (MCLA 750.316; MSA 28,548) by a jury in the Recorder's Court of the City of Detroit.

On this appeal defendant initially asserts, as he did in his motion for new trial, that his conviction and sentence should be reversed because the jury's verdict was against the great weight of the evidence. The proper standard by which we must judge such a claim is whether the evidence presented during trial is sufficient to support a finding of guilt beyond a reasonable doubt. People v Bynum, 21 Mich App 596; 175 NW2d 870 (1970), lv den, 383 Mich 776 (1970). In the case at bar it was clearly established that a gunman, during the commission of an armed robbery, shot and killed Richard Holley, the deceased. Although the identity of defendant as the gunman was hotly contested in the court below, we cannot say that the evidence presented was insufficient to support a finding of guilt beyond a reasonable doubt. People v Hayton, 28 Mich App 673; 184 NW2d 755 (1970), lv den, 384 Mich 825 (1971). Witnesses were presented by the prosecution who testified that defendant was the person who shot the deceased and then bent over the body and removed his wallet. Defendant's alibi was ably presented and the prosecution's witnesses vigorously examined by defendant's attorney. The credibility of identification testimony is a matter left solely to the jury who, after listening to all the testimony and viewing the demeanor of the witnesses, chose to disbelieve defendant. We are not about to substitute our judgment for theirs. People v Harper, 43 Mich App 500, 204 NW2d 263 (1972); People v Hayton, supra.

Defendant's second and third assignments of error focus on the conduct of the trial judge in the proceedings below. Defendant contends that he was denied a fair trial and his cause prejudicially influenced in the minds of the jurors when the trial judge questioned certain of the witnesses, interrupted and criticized defendant's attorney in the presence of the jury, and called a recess after defendant's attorney had begun to cross-examine one of the witnesses. We find defendant's allegations of error in this regard to be without merit. In order for us to find that the conduct of the trial judge constituted reversible error we would be required to say that what occurred prevented defendant from having a fair and impartial trial. People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972), lv den, 388 Mich 809 (1972); People v Roby, 38 Mich App 387; 196 NW2d 346 (1972). This we are unable to do. The questions propounded by the trial judge were generally made in an attempt to clarify matters to which testimony had previously been directed and did not approach the degree of judicial impropriety condemned in People v Bedsole, 15 Mich App 459; 166 NW2d 642 (1969). The further acts of the trial judge which defendant relies upon to establish that he was denied a fair trial, when examined in the context of this heated trial, are not of the "magnitude necessary for reversal on the ground that the trial court pierced the veil of judicial impartiality". People v Turner, 41 Mich App 744; 201 NW2d 115 (1972), lv den, 388 Mich 790 (1972). See MCLA 768.29; MSA 28.1052.

Defendant's next assertion is that the trial judge abused her discretion when she denied, on two occasions, defendant's requests that lineups be held, prior to any in-court identifications, for witnesses who had not confronted defendant prior to trial. Defendant properly recognizes that the decision to grant or deny such requests is left to the sound discretion of the trial judge. People ex rel Ingham County Prosecutor v East Lansing Municipal Judge, 42 Mich App 32; 201 NW2d 318 (1972). The test to be employed in determining whether the denial of such a motion requires reversal of a defendant's conviction was stated in the following terms by the Ninth Circuit Court of Appeals in United States v Williams, 436 F2d 1166, 1168-69 (CA 9, 1970), cert den, 402 US 912 (1971).

"Absent abuse of that discretion resulting in procedure ``so unnecessarily suggestive and conducive to irreparable mistaken identification' as to amount to a denial of due process of law * * * we should not question the trial judge's ruling."

Defendant has failed to establish any such abuse of discretion in this case. Accordingly, we hold that reversible error was not here committed.

Defendant next contends that the trial judge committed reversible error by allowing the prosecution to introduce certain time cards into evidence. Defendant asserts that the admission of this evidence constituted a violation of his constitutional right of confrontation as guaranteed by Const 1963, art 1, § 20 and the Sixth Amendment to the United States Constitution. The time cards upon which defendant bases this assignment of error were admitted into evidence only after defendant's attorney stated that he had no objection. The issue now sought to be raised by defendant with respect to the propriety of receiving these time cards into evidence is not, therefore, properly before us. Defendant's attorney, by stating that he had no objection to the admission of these time cards, acquiesced in their admission and defendant cannot now be heard to complain. This was not a situation where defendant's attorney failed to object to the proffered evidence, as was the case in People v Lester, 50 Mich App 725; 213 NW2d 793 (1973), but, rather, was a situation where defendant's attorney, for whatever reason, acceded to the prosecution's offer of evidence. We, therefore, decline the invitation to consider this issue on appeal.

Defendant finally alleges that certain remarks made by the prosecutor during the trial and in closing argument were so prejudicial as to deny him his right to a fair trial. We have closely examined the remarks of the prosecutor made during the course of the trial and find ourselves unable to say that they were so prejudicial as to cause the jury to suspend its own power of judgment in receiving the evidence before it. People v Gray, 45 Mich App 643; 207 NW2d 161 (1973); People v Turner, supra. The statements of the prosecutor made during closing argument which defendant also assigns as error were not objected to at trial. Since an objection and the appropriate curative instruction could have eliminated any prejudice arising therefrom, we are precluded from considering the issue of their appropriateness on this appeal. People v Tarpley, 41 Mich App 227; 199 NW2d 839 (1972); People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970).

Conviction affirmed.

VAN VALKENBURG, J., concurred.

T.M. BURNS, J. (dissenting).

I cannot agree with the majority decision to decline to consider the question of the propriety of the admission of the time cards into evidence merely because defendant's trial counsel failed to voice an objection. It is settled law in this state that failure to object does not preclude this Court from reviewing a claim where a constitutional right is likely to have been infringed. People v Lester, 50 Mich App 725; 213 NW2d 793 (1973); People v Thomas, 44 Mich App 649; 205 NW2d 604 (1973); People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972).

In People v Lewis, 294 Mich 684; 293 NW 907 (1940), our Supreme Court held that it was error to admit business records into evidence in a criminal proceeding under an exception to the hearsay rule because to do so deprives the defendant of his right of confrontation as guaranteed by Const 1963, art 1 § 20, and the Sixth Amendment to the United States Constitution. The admission of the time cards in the instant case, therefore, clearly constituted error. However, the question remains whether this error requires a reversal of defendant's conviction. In People v Gauthier, 28 Mich App 318; 184 NW2d 488 (1970), lv den 384 Mich 812 (1971), this Court held that although error was committed when certain business records were admitted into evidence, the error was harmless beyond a reasonable doubt because of the over-whelming convicting evidence which had been presented. I am convinced that the error in the instant case was not harmless beyond a reasonable doubt.

The theory provided by the defense was one of alibi. To support this theory, the defendant produced witnesses who stated they were with defendant and Alphonso Floyd at the time the shots were fired. Other defense witnesses identified Floyd as being down on the street immediately after the shooting. Floyd himself said he was in the apartment, went out on the street, returned home, and then went to work.

The admission of the time cards contrary to the mandate of People v Lewis, supra, indicated that Floyd and a companion were at work at the time of the firing of the shots, thus negating not only the defendant's theory of the case that Floyd was with him, but also attacking the credibility of defendant's other witnesses who testified they saw Floyd shortly after the shooting. Therefore the admission of the time card evidence was highly prejudicial to the defendant.

Accordingly, to cure the prejudice engendered by the time card evidence, I vote to reverse and remand for a new trial.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.